for the district of columbia state of texas, eric h. … · case no. 1:12-cv-00128 (rmc-dst-rlw)...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendant. ERIC KENNIE, et al., Defendant-Intervenors, TEXAS STATE CONFERENCE OF NAACP BRANCHES, et al., Defendant-Intervenors, TEXAS LEAGUE OF YOUNG VOTERS EDUCATION FUND, et al., Defendant-Intervenors. TEXAS LEGISLATIVE BLACK CAUCUS, et al., Defendant-Intervenors, VICTORIA RODRIGUEZ, et al., Defendant-Intervenors.

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CASE NO. 1:12-CV-00128 (RMC-DST-RLW) Three-Judge Court

THE ATTORNEY GENERAL’S MOTION FOR SUMMARY JUDGMENT

Claim Two of the State of Texas’s First Amended Complaint alleges that Section

Case 1:12-cv-00128-RMC-DST-RLW Document 350 Filed 10/22/12 of 5

5 of the Voting Rights Act, 42 U.S.C. 1973c, violates the Constitution of the United

States. Pursuant to Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h),

Attorney General Eric J. Holder, Jr. respectfully moves for summary judgment on Claim

Two.

A moving party is entitled to summary judgment where, as here, “the pleadings,

the discovery and disclosure materials on file, and any affidavits, show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c)(2); Local Civ. R. 7(h); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-250 (1986); Paige v. Drug Enforcement Admin, 665 F.3d

1355, 1358 (D.C. Cir. 2012). Because there is no genuine triable issue as to any material

fact before this Court, the Attorney General is entitled to judgment as a matter of law.

In support of this motion, the Attorney General submits a Statement of Undisputed

Material Facts, with accompanying exhibits, and a Memorandum of Points and

Authorities in support of the Motion. In accord with the Court’s September 14, 2012

Scheduling Order (Doc. 345), the Attorney General’s Memorandum is consolidated with

his Opposition to the State of Texas’s Motion for Summary Judgment. In support of his

opposition to the State’s motion, the Attorney General submits a Statement of Genuine

Issues.

To the extent that oral argument would assist the Court in resolving the questions

presented in instant motion, the Attorney General would be pleased to answer any

questions the Court may have.


Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia T. CHRISTIAN HERREN, JR.

/s/ Spencer R. Fisher

JESSICA DUNSAY SILVER MEREDITH BELL-PLATTS

ERIN H. FLYNN ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO SPENCER FISHER RISA BERKOWER DANIEL J. FREEMAN

Attorneys Civil Rights Division

United States Department of Justice 950 Pennsylvania Ave. NW Dated: October 22, 2012 Washington, D.C. 20530


CERTIFICATE OF SERVICE

I hereby certify that on October 22, 2012, I served a true and correct copy of the foregoing via the Court’s ECF system on the following counsel of record:

Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas [email protected] [email protected] [email protected] [email protected] Adam K. Mortara John M. Hughes Bartlit Beck Herman Palenchar & Scott LLP [email protected] [email protected] Counsel for Plaintiff John Tanner [email protected] Nancy G. Abudu M. Laughlin McDonald Arthur B. Spitzer American Civil Liberties Union [email protected] [email protected] [email protected] Counsel for Texas Legislative Black Caucus Intervenors

Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson [email protected] [email protected] [email protected] Counsel for Texas League of Young Voters Intervenors J. Gerald Hebert [email protected] Chad W. Dunn Brazil & Dunn [email protected] Counsel for Kennie Intervenors


Jon M. Greenbaum Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] [email protected] Ezra David Rosenberg Michelle Hart Yeary Dechert LLP [email protected] [email protected] Robert Stephen Notzon [email protected] Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates [email protected] Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice [email protected] [email protected] [email protected] Counsel for NAACP Intervenors

Nina Perales Mexican American Legal Defense & Educational Fund, Inc. [email protected] Counsel for Rodriguez Intervenors

SPENCER R. FISHER /s/ Spencer R. Fisher

U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [email protected]




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MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Case 1:12-cv-00128-RMC-DST-RLW Document 350-1 Filed 10/22/12 Page 1 of 58

TABLE OF CONTENTS

PAGE

BACKGROUND ................................................................................................................. 1

ARGUMENT ....................................................................................................................... 9

I CONGRESS APPROPRIATELY EXERCISED ITS ENFORCEMENT AUTHORITY UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS WHEN IT REAUTHORIZED SECTIONS 4(b) AND 5 IN 2006 ............................... 10

A. The D.C. Circuit’s Decision In Shelby County Is Binding On This Court ................................................................................... 12 B. The 2006 Legislative Record Demonstrates That Section 5’s Current Burdens Are Justified By Current Needs And That Its Disparate Geographic Coverage Is Sufficiently Related To Contemporary Racial Discrimination In Voting ........... 15 II SECTION 5’S EFFECTS PRONG IS VALID PROPHYLACTIC LEGISLATION ........................................................................................... 26 III SECTION 5 DOES NOT VIOLATE EQUAL PROTECTION PRINCIPLES ............................................................................................... 38 IV SECTION 5 IS NOT UNCONSTITUTIONALLY VAGUE ..................... 44 CONCLUSION ................................................................................................................. 50


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TABLE OF AUTHORITIES CASES: PAGE Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .......................................... 38-39 Arizona v. Holder, 839 F. Supp. 2d 36 (D.D.C. 2012) ..................................................... 13 *Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .............. 26, 28, 31, 38 *Bush v. Vera, 517 U.S. 952 (1996) ............................................................................. 39-40 *City of Boerne v. Flores, 521 U.S. 507 (1997)......................................................... passim City of Richmond v. United States, 422 U.S. 358 (1975) .................................................. 43 *City of Rome v. United States, 446 U.S. 156 (1980) ................................................ passim City of Rome v. United States, 472 F. Supp. 221 (D.D.C. 1979) ...................................... 13 Connally v. General Constr. Co., 269 U.S. 385 (1926) .................................................... 44 Ex parte Virginia, 100 U.S. 339 (1879) ............................................................................ 32 F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ....................................... 44 *Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999) ......................................................................................... 26, 37 Florida v. United States, No. 11cv1428, 2012 WL 3538298 (D.D.C. Aug. 16, 2012) ...................................................................................... 7, 45 Free Enter. Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010) ........ 49 Georgia v. Ashcroft, 539 U.S. 461 (2003) .............................................................. 6, 41, 46 *Georgia v. United States, 411 U.S. 526 (1973) ............................................... 5, 26, 45-46 Grutter v. Bollinger, 539 U.S. 306 (2003) ........................................................................ 41 John Doe No. 1 v. Reed, 130 S. Ct. 2811 (2010) .............................................................. 27 *Katzenbach v. Morgan, 384 U.S. 641 (1966).................................................. 9, 11, 17, 33


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CASES (continued): PAGE *LULAC v. Perry, 548 U.S. 399 (2006) ...................................................................... 21, 40 LaRoque v. Holder, 831 F. Supp. 2d 183 (D.D.C. 2011), vacated as moot, 679 F.3d 905 (D.C. Cir. 2012), petition for cert. pending, No. 12-81 (filed Jul. 20, 2012) ............................................................................................ 9, 39 LaRoque v. Holder, No. 10cv561, 2010 WL 3719928 (D.D.C. May 12, 2010) ............... 13 Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) .................................................... 49 Lopez v. Monterey Cnty., 525 U.S. 266 (1999) ................................................. 5, 26, 38, 45 *Miller v. Johnson, 515 U.S. 900 (1995) .............................................................. 39, 41, 43 *Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) .................................. passim *Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ........... passim Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008) ............................................................. 7, 11, 13 Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990) ........................................... 42 *Oregon v. Mitchell, 400 U.S. 112 (1970) ........................................................................ 33 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) ............. 39 Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Ohio 2003) .................................................. 14 Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) ....................................................... 6 Shaw v. Hunt, 517 U.S. 899 (1996) ........................................................................ 39-40, 43 *Shelby Cnty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012), petition for cert. pending, No. 12-96 (filed Jul. 20, 2012) .............................. passim *Shelby Cnty. v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011) .......................... 8, 13, 16, 38 *South Carolina v. Holder, No. 12cv203, 2012 WL 4814094 (D.D.C. Oct. 10, 2012) ............................................................................... 36, 41, 48


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CASES (continued): PAGE *South Carolina v. Katzenbach, 383 U.S. 301 (1966) ............................................... passim *Tennessee v. Lane, 541 U.S. 509 (2004) .................................................................. passim Texas v. United States, No. 11cv1303, 2012 WL 3671924 (D.D.C. Aug. 28, 2012) .............................................................................. 12, 21, 42 *Texas v. Holder, No. 12cv128, 2012 WL 3743676 (D.D.C. Aug. 30, 2012) .......... passim Thornburg v. Gingles, 478 U.S. 30 (1986) ........................................................................ 16 Thunder Basin v. Reich, 510 U.S. 200 (1994)................................................................... 46 *United States v. Beer, 425 U.S. 130 (1976) ............................................................. passim United States v. Raines, 362 U.S. 17 (1960) ..................................................................... 42 United States v. Ramsey, 353 F.2d 650 (5th Cir. 1965) .................................................... 14 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ............................................................................................... 35 *Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) ......................................................................................... 27, 42 STATUTES: Voting Rights Act, 42 U.S.C. 1973 et seq., 42 U.S.C. 1973(a) ................................................................................................... 16 42 U.S.C. 1973b(a)(5) ............................................................................................ 13 42 U.S.C. 1973c .................................................................................................. 1, 45 42 U.S.C. 1973c(a) ..................................................................................... 13, 27, 45 42 U.S.C. 1973c(b) ................................................................................................... 6 42 U.S.C. 1973c(c) ................................................................................................... 6 42 U.S.C. 1973c(d) ................................................................................................... 6 42 U.S.C. 1973l(b) .................................................................................................. 14 42 U.S.C. 1973l(e) .................................................................................................. 46 42 U.S.C. 1973p ..................................................................................................... 49 Voting Rights Act, Pub. L. No. 89-110, 79 Stat. 437 (1965) .............................................. 2 §4(b), 79 Stat. 438 .................................................................................................... 4


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STATUTES (continued): PAGE §4(c), 79 Stat. 438-439 ............................................................................................. 4 §5, 79 Stat. 439 ......................................................................................................... 3 Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314 ...................... 4 Act of Aug. 6, 1975, Pub. L. No. 94-73, Tit. II, 89 Stat. 400 .............................................. 4 89 Stat. 401-402 ........................................................................................................ 5 Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131 ...................... 4 §2(b), 96 Stat. 131 .................................................................................................... 5 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577-581 ...................................................................................................... 5 §2(a)-(b), 120 Stat. 577-578 ................................................................................... 31 §2, 120 Stat. 577-578.............................................................................................. 34 §2(b)(9), 120 Stat. 578............................................................................................ 10 §2(b)(1)-(2), 120 Stat. 577 .................................................................................... 6 §2(b)(9), 120 Stat. 578........................................................................................... 5-6 28 U.S.C. 1367(a) .............................................................................................................. 13 28 U.S.C. 1367(c) .............................................................................................................. 13 28 U.S.C. 1367(c)(4) ......................................................................................................... 14 REGULATIONS: 28 C.F.R. 51.52(a) ............................................................................................................. 45 28 C.F.R. 51.54 .................................................................................................................. 46 28 C.F.R. 51.54(b) ....................................................................................................... 40, 45 28 C.F.R. 51.55 & 51.56 ................................................................................................... 43 28 C.F.R. 51.57 .................................................................................................................. 46 28 C.F.R. 51.57(a) ............................................................................................................. 41 28 C.F.R. 51.57(d) ............................................................................................................. 41


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REGULATIONS (continued): PAGE 28 C.F.R. 51.59(b) ............................................................................................................. 43 28 C.F.R. Pt. 51 ................................................................................................................. 45 Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 66 Fed. Reg. 5412 (Jan. 18, 2001) ........................................... 43 Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011) ..................................................................... 43, 45 Revision of Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 52 Fed. Reg. 488 (Jan. 6, 1987) ......................................................... 43 LEGISLATIVE HISTORY: H.R. Rep. No. 439, 89th Cong., 1st Sess. (1965) ........................................................ 34, 37 H.R. Rep. No. 397, 91st Cong., 1st Sess. (1969) .................................................. 19, 34, 37 H.R. Rep. No. 196, 94th Cong., 1st Sess. (1975) ............................................ 19, 34, 37, 46 H.R. Rep. No. 227, 97th Cong., 1st Sess. (1981) .................................................. 14, 19, 34 H.R. Rep. No. 478, 109th Cong., 2d Sess. (2006) ...................................................... passim Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry, Hearing Before Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Judiciary Comm., 109th Cong., 2d Sess. Attach. to Statement of Nina Perales (2006) (Voting Rights in Texas, 1982-2006), available at http://judiciary.senate.gov/pdf/7-13-06ninaperales.pdf (last visited Oct. 22, 2012) ................................................................................ 20-21 To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Judiciary Comm., 109th Cong., 1st Sess. (2005) ................................................................... 20 Voting Rights Act: Evidence of Continued Need, Hearing Before Subcomm. on the Constitution of the H. Judiciary Comm., 109th Cong., 2d Sess. (2006) ................................................................................. 20


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LEGISLATIVE HISTORY (continued): PAGE Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before the Subcomm. on the Constitution of the H. Judiciary Comm., 109th Cong., 1st Sess. (2005) .............................................................. 19-20 MISCELLANEOUS: 17A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §4235 (3d ed. 2012) ........................................................................................... 12-13 Erwin Chemerinksy, Constitutional Law: Principles and Policies §11.2.2 (2d ed. 2002) ........................................................................................................... 44


On August 30, 2012, this Court denied Texas’s request for a declaratory judgment

that Senate Bill 14 (SB 14), the State’s recently enacted photo ID requirement for in-

person voters, “neither has the purpose nor will have the effect of denying or abridging

the right to vote on account of race [or] color,” or membership in a language minority

group. Texas v. Holder, No. 12cv128, 2012 WL 3743676, at *1 (D.D.C. Aug. 30, 2012)

(three-judge court) (quoting 42 U.S.C. 1973c(a)). As a result of this Court’s denial of

preclearance based on the State’s failure to establish that SB 14 will not have a

retrogressive effect, see id., Texas now challenges the constitutionality of Section 5 of the

Voting Rights Act of 1965, 42 U.S.C. 1973c, as reauthorized and amended in 2006. Pl.

Mot. 1.1 Section 5 on its face and “as interpreted by this Court” (Pl. Mot. 1) is

constitutional. Accordingly, this Court should grant the Attorney General’s motion for

summary judgment and deny Texas’s motion for summary judgment.

BACKGROUND

1. The Fifteenth Amendment, which prohibits racial discrimination in voting, was

ratified in 1870. South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966). Beginning in

1890, some States—located mostly in the South—began systematically disenfranchising

racial minorities through the use of various discriminatory and dilutive devices. Id. at

310-312; Shelby Cnty. v. Holder, 679 F.3d 848, 853 (D.C. Cir. 2012), petition for cert.

1 “Pl. Mot.” refers to Plaintiff’s Motion for Summary Judgment in this case. “Pl. Mem.” refers to Plaintiff’s Memorandum of Points and Authorities in Support of its Motion for Summary Judgment. See Doc. 347, Texas v. Holder, No. 12cv128 (filed Oct. 1, 2012). “Def. SMF” refers to the Attorney General’s Statement of Uncontested Material Facts.


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pending, No. 12-96 (filed Jul. 20, 2012). Given the success of such efforts, “[t]he first

century of congressional enforcement of the Amendment * * * can only be regarded as a

failure.” Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 197 (2009).

Federal law enacted in 1957, 1960, and 1964 did “little to cure the problem,” despite not

only authorizing the Attorney General to seek injunctions against public and private

interference with voting on racial grounds, join States as party defendants, and gain

access to local voting records, but also empowering the federal district courts to register

voters in areas where there had been systematic violations and to resolve voting cases

expeditiously as three-judge courts. South Carolina, 383 U.S. at 313. Congress

“repeatedly” sought through each of these measures to “facilitat[e] case-by-case litigation

against voting discrimination”; the measures, however, “proved ineffective for a number

of reasons,” including the “unusually onerous” and “exceedingly slow” nature of voting-

rights litigation. Id. at 313-314; see also id. at 328. Even where litigation succeeded,

officials “merely switched to [other] discriminatory devices,” “enacted difficult new

tests,” “defied and evaded court orders,” or “closed their registration offices to freeze the

voting rolls.” Id. at 314; see also Shelby Cnty., 679 F.3d at 854.

In 1965, Congress thus exercised its constitutional authority “in an inventive

manner” when it passed the Voting Rights Act, Pub. L. No. 89-110, 79 Stat. 437 (1965

Act), to “rid the country of racial discrimination in voting.” South Carolina, 383 U.S. at

315, 327. The 1965 Act combined permanent enforcement measures applicable

nationwide with more stringent, temporary measures targeted at areas in which Congress

had found pervasive voting discrimination. See id. at 315-316; Shelby Cnty., 679 F.3d at


3

854. Section 5, a temporary provision applicable only to “covered jurisdictions,”

provided that “[w]henever” a covered jurisdiction “enact[s] or seek[s] to administer any

* * * standard, practice, or procedure with respect to voting different from that in force or

effect” on its coverage date, it must first obtain a determination from either the Attorney

General of the United States or a three-judge panel of the United States District Court for

the District of Columbia that the proposed change “does not have the purpose and will

not have the effect of denying or abridging the right to vote on account of race or color.”

1965 Act, §5, 79 Stat. 439. By imposing this preemptive measure on jurisdictions that

were engaged in egregious voting discrimination and forcing them to show their proposed

voting changes were nondiscriminatory before they could take effect, Congress countered

the inadequacy of case-by-case litigation and “shift[ed] the advantage of time and inertia

from the perpetrators of the evil to its victims.” South Carolina, 383 U.S. at 327-328; see

Shelby Cnty., 679 F.3d at 854-855.

In specifying the geographic scope of Section 5, “Congress identified the

jurisdictions it sought to cover—those for which it had ‘evidence of actual voting

discrimination,’ * * * and then worked backward, reverse-engineering a formula to cover

those jurisdictions.” Shelby Cnty., 679 F.3d at 879. Thus, rather than identify by name

the jurisdictions subject to Section 5 based on substantial voting discrimination, Congress

described them in Section 4(b) as those jurisdictions that: (1) maintained a prohibited test

or device on November 1, 1964; and (2) had registration or turnout rates below 50% of


4

the voting age population in November 1964. See 1965 Act, §4(b), 79 Stat. 438.2 To

respond to over- and under-inclusiveness in Section 4(b)’s coverage criteria, Congress

included a “bail-in” provision, under which any jurisdiction found to have violated the

Constitution’s prohibition on voting discrimination could be ordered to obtain

preclearance, and a “bailout” provision, under which a jurisdiction could terminate its

coverage by showing it had not used a test or device for a prohibited purpose. See Shelby

Cnty., 679 F.3d at 855.

The Supreme Court upheld the temporary provisions of the 1965 Act, including

Sections 4(b) and 5, as appropriate means of enforcing the Fifteenth Amendment’s voting

guarantees, see South Carolina, 383 U.S. at 323-337, noting that “millions of non-white

Americans will now be able to participate for the first time on an equal basis in the

government under which they live,” id. at 337.

2. Congress reauthorized Sections 4(b) and 5 in 1970 (for five years), 1975 (for

seven years), and 1982 (for 25 years). See Voting Rights Act Amendments of 1970, Pub.

L. No. 91-285, 84 Stat. 314; Act of Aug. 6, 1975 (Act of 1975), Pub. L. No. 94-73, Tit. II,

89 Stat. 400; Voting Rights Act Amendments of 1982 (1982 Amendments), Pub. L. No.

97-205, 96 Stat. 131. Importantly, in 1975, Congress broadened the definition of “test or

2 “[T]est or device” means “any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 1965 Act, §4(c), 79 Stat. 438-439.


5

device” to include the provision of English-only voting materials in jurisdictions with a

substantial population of statutorily-defined “language minorities,” thereby extending

Section 5’s reach to additional jurisdictions, including Texas, that Congress knew to be

engaged in widespread discrimination against minority voters. Act of 1975, 89 Stat. 401-

402; see also Shelby Cnty., 679 F.3d at 855. Also, in 1982, Congress significantly eased

the bailout standard by allowing jurisdictions that complied for ten years with specified

nondiscrimination measures to bail out, and by expanding bailout eligibility to include

“any political subdivision of [a covered] State,” even if that subdivision had not been

separately covered. 1982 Amendments, §2(b), 96 Stat. 131.

The Supreme Court reaffirmed the constitutionality of Sections 4(b) and 5 after

each reauthorization, finding that circumstances justified the temporary provisions. See

Georgia v. United States, 411 U.S. 526, 535 (1973); City of Rome v. United States, 446

U.S. 156, 172-182 (1980); Lopez v. Monterey Cnty., 525 U.S. 266, 282-285 (1999).

3. In 2006, Congress reauthorized Section 5 for 25 years. See Fannie Lou Hamer,

Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments

Act of 2006 (2006 Reauthorization), Pub. L. No. 109-246, §5, 120 Stat. 577-581. After

holding an extensive series of hearings regarding ongoing voting discrimination in the

country and, in particular, the continued need for a preclearance requirement in covered

jurisdictions, Congress concluded that, “without the continuation of the [VRA’s]

protections, racial and language minority citizens will be deprived of the opportunity to

exercise their right to vote, or will have their votes diluted, undermining the significant

gains made by minorities in the last 40 years.” Id. §2(b)(9), 120 Stat. 578. Although


6

Congress found that, as a “direct result” of the VRA, “[s]ignificant progress has been

made in eliminating first generation barriers experienced by minority voters,” Congress

determined that “vestiges of discrimination in voting continue to exist as demonstrated by

second generation barriers constructed to prevent minority voters from fully participating

in the electoral process.” Id. §2(b)(1)-(2), 120 Stat. 577.

In 2006, Congress also amended Section 5’s substantive standard in two ways.

The first amendment provides that neither administrative nor judicial preclearance may

be granted to a proposed voting change motivated by any racially discriminatory purpose,

regardless of whether that change is intended to make racial minorities any worse off than

they are under the existing practice. See 42 U.S.C. 1973c(c). That amendment

supplanted the Supreme Court’s statutory holding in Reno v. Bossier Parish School

Board, 528 U.S. 320 (2000), that changes motivated by a discriminatory purpose, even

though unconstitutional, were not a basis for denying preclearance where the jurisdiction

acted with a “discriminatory but nonretrogressive purpose.” Id. at 341. The second

amendment provides that preclearance should be denied if an electoral change

diminishes, on account of race, citizens’ ability “to elect their preferred candidates of

choice.” 42 U.S.C. 1973c(b) and (d). That amendment supplanted the Supreme Court’s

statutory holding in Georgia v. Ashcroft, 539 U.S. 461 (2003), that a proposed

redistricting plan was not retrogressive despite reducing minority voters’ ability to elect

their preferred candidates of choice, because the plan created new districts in which

minority voters could potentially influence an election’s outcome. In amending Section

5, Congress instructed the Attorney General and the lower courts that, when analyzing


7

retrogression in districting plans and other potentially dilutive voting changes, they must

compare a minority group’s ability to elect its preferred candidates of choice before and

after a voting change. See H.R. Rep. No. 478, 109th Cong., 2d Sess. 70-71 (2006); see

also Florida v. United States, No. 11cv1428, 2012 WL 3538298, at *10 (D.D.C. Aug. 16,

2012) (three-judge court).

4. Following the 2006 reauthorization, a jurisdiction in Texas filed suit in the

United States District Court for the District of Columbia seeking to terminate its Section

5 coverage and, in the alternative, challenging the continued constitutionality of Section

5. A three-judge court held that the jurisdiction was ineligible to apply for bailout and

upheld the constitutionality of the 2006 reauthorization. See Northwest Austin Mun. Util.

Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 235-283 (D.D.C. 2008) (three-judge

court). On appeal, the Supreme Court reversed the bailout holding, thereby expanding

significantly the number of jurisdictions previously thought eligible to bail out under

Section 4(a) of the VRA. See Northwest Austin, 557 U.S. at 206-211. Accordingly, the

Court declined to reach the constitutional question. Id. at 205, 211. The Court, however,

acknowledged the progress minority voters have made in covered jurisdictions, “no doubt

due in significant part to the [VRA] itself.” Id. at 202. And it stated that “these

improvements” may be “insufficient and that conditions [may] continue to warrant

preclearance under the Act.” Id. at 203. The Court warned, however, that for Section 5

to be valid, its “current burdens * * * must be justified by current needs” and its

“disparate geographic coverage” must be “sufficiently related to the problem that it

targets.” Id.


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Within a year of the Supreme Court’s decision in Northwest Austin, a covered

jurisdiction again filed suit in this district court, seeking a declaration that the

reauthorization of Sections 4(b) and 5 exceeded Congress’s enforcement authority under

the Fourteenth and Fifteenth Amendments and that the provisions are therefore

unconstitutional, as well as a permanent injunction barring the Attorney General from

enforcing both provisions. See Shelby Cnty. v. Holder, 811 F. Supp. 2d 424, 427 (D.D.C.

2011). In a comprehensive opinion that reviewed “the extensive 15,000-page legislative

record” supporting the 2006 reauthorization, id. at 428, the district court rejected the

plaintiff’s facial constitutional challenge, concluding that “Congress possess[ed] the

requisite ‘evidence of a pattern of constitutional violations on the part of the States,’” id.

at 492 (quoting Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 729

(2003)), necessary “to justify Section 5’s ‘strong remedial and preventive measures,’” id.

(quoting City of Boerne v. Flores, 521 U.S. 507, 526 (1997)). The district court further

concluded that Section 5 is a congruent and proportional remedy, particularly in light of

the meaningful limits built into Section 5, including its bailout mechanism. Id. at 498-

503.

On appeal, a divided panel of the D.C. Circuit upheld the 2006 reauthorization of

Sections 4(b) and 5 after independently examining the legislative record and concluding

that “section 5’s ‘current burdens’ are indeed justified by ‘current needs,’” and that

Section 4(b), together with the VRA’s bail-in and bailout mechanisms, “continues to


9

single out the jurisdictions in which discrimination is concentrated.” Shelby Cnty., 679

F.3d at 873, 883.3

ARGUMENT

In Northwest Austin Municipal Utility District No. One v. Holder, the Supreme

Court emphasized both that “judging the constitutionality of an Act of Congress is ‘the

gravest and most delicate duty that [a court] is called on to perform’” and that “[t]he

Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first

instance what legislation is needed to enforce it.” 557 U.S. 193, 205 (2009) (citation

omitted); see also Shelby Cnty. v. Holder, 679 F.3d 848, 861-862 (D.C. Cir. 2012),

petition for cert. pending, No. 12-96 (filed Jul. 20, 2012); Katzenbach v. Morgan, 384

U.S. 641, 648-653, 657 (1966) (recognizing Congress’s discretion in deciding how to

exercise its Fourteenth Amendment enforcement authority). Texas primarily argues that,

in continuing to impose the effects prong in the covered jurisdictions, Congress exceeded

its enforcement authority under the Fifteenth Amendment. Texas’s challenge, however,

is foreclosed by Shelby County and, moreover, flatly contradicted by established Supreme

Court precedent. Because Sections 4(b) and 5 of the VRA are appropriate legislation

under the Fourteenth and Fifteenth Amendments to enforce the prohibition against racial

3 The 2006 reauthorization of Sections 4(b) and 5 also was upheld against a facial challenge in LaRoque v. Holder, which further held that Congress validly exercised its enforcement authority under the Fourteenth and Fifteenth Amendments when it amended Section 5’s substantive preclearance standard in 2006. See 831 F. Supp. 2d 183 (D.D.C. 2011), vacated as moot, 679 F.3d 905 (D.C. Cir. 2012), petition for cert. pending, No. 12-81 (filed Jul. 20, 2012).


10

discrimination in voting and do not violate equal protection or due process principles,

they are constitutional.

I

CONGRESS APPROPRIATELY EXERCISED ITS ENFORCEMENT AUTHORITY UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS

WHEN IT REAUTHORIZED SECTIONS 4(b) AND 5 IN 2006

In 2006, based on an evidentiary record of over 15,000 pages, Congress

reasonably concluded (a) that racial discrimination in voting continued to exist in those

jurisdictions it had previously subjected to preclearance, (b) that such discrimination

remained more prevalent in covered areas than in non-covered areas, and (c) that without

the preclearance requirement, “racial and language minority citizens will be deprived of

the opportunity to exercise their right to vote, or will have their votes diluted,

undermining the significant gains made by minorities in the last 40 years.” 2006

Reauthorization, §2(b)(9), 120 Stat. 578. Texas concedes that its facial challenge to the

2006 reauthorization of Sections 4(b) and 5 simply rehashes the arguments recently made

by other covered jurisdictions to the D.C. Circuit, i.e., “[c]overed jurisdictions no longer

engage in widespread and systematic evasion of the Fifteenth Amendment, and the

coverage formula is based on data that are over 35 years old, causing section 5 to

unjustifiably (and unconstitutionally) discriminate among the States.” Pl. Mem. 38.

Texas also concedes, as it must, that the D.C. Circuit rejected these arguments “in a

comprehensive opinion,” Pl. Mem. 38, holding that Section 5’s current burdens are

justified by current needs and that its disparate geographic coverage sufficiently relates to

the problem Congress targeted. See Shelby Cnty., 679 F.3d at 858-883.


11

Yet Texas argues that this Court should undertake its own review of the 2006

legislative record because it is bound only by Supreme Court precedent, not the decisions

of the D.C. Circuit. Pl. Mem. 40. Because Shelby County governs Texas’s facial

challenge to Sections 4(b) and 5 and should be treated as a binding decision by this Court

(as the State previously conceded), the State’s arguments against the sufficiency of the

2006 legislative record fail. Even if this Court determines that it is bound only by

Supreme Court precedent, Texas’s challenge likewise fails because the State has offered

no persuasive rationale for rejecting the D.C. Circuit’s thorough analysis in Shelby

County.4

4 In Northwest Austin, the Supreme Court declined to decide the constitutionality of the 2006 Reauthorization as well as whether, in deciding that question, a court should apply rational basis review or congruence and proportionality analysis. See 557 U.S. at 204-205. In stating that the provision’s “current burdens * * * must be justified by current needs,” however, the Supreme Court emphasized that the 2006 Reauthorization could be upheld under either standard only if current conditions continued to warrant preclearance and the Act’s disparate coverage sufficiently targeted that discrimination. Id. at 203. In Shelby County, the United States argued that Sections 4(b) and 5 are subject to rational basis review, but that they must be upheld even under congruence and proportionality review. See Brief for the Attorney General as Appellee, Shelby Cnty. v. Holder (No. 11-5256) (D.C. Cir.) (filed Dec. 1, 2011). In upholding the 2006 Reauthorization of Sections 4(b) and 5, Shelby County interpreted Northwest Austin as sending a “powerful signal that congruence and proportionality is the appropriate standard of review.” 679 F.3d at 859. We apply congruence and proportionality analysis for the purposes of this motion. The D.C. Circuit did not definitely adopt that standard, however, see id., and the government adheres to its view that rational basis review is the proper standard for examining legislation to remedy racial discrimination in voting. See Tennessee v. Lane, 541 U.S. 509, 564 (2004) (Scalia, J., dissenting); City of Rome v. United States, 446 U.S. 156, 175-177 (1980); Morgan, 384 U.S. at 651-653; South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966); Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 241-246 (D.D.C. 2008) (explaining why rational basis review applies in this context).


12

A. The D.C. Circuit’s Decision In Shelby County Is Binding On This Court

Texas acknowledges that most courts adopt the view that a three-judge court in

voting-rights litigation is bound by the decisions of the court of appeals for its circuit. Pl.

Mem. 38-39; see also 17A Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure §4235 (3d ed. 2012). Regardless of whether this should be the default rule in

each instance a statutory three-judge court is convened, a three-judge court convened

under Section 5 to render a preclearance determination must follow relevant D.C. Circuit

precedent, if any exists, as to the constitutional claims over which it exercises pendent

jurisdiction. Moreover, according Shelby County controlling weight in this case is

consistent with the view of another three-judge panel of this Court. See Order at 3,

Florida v. United States, No. 11cv1428 (D.D.C. June 5, 2012) (three-judge court) (“[T]he

Court considers itself bound by * * * Shelby County, Alabama v. Holder.”); cf. Texas v.

United States, No. 11cv1303, 2012 WL 3671924, at *8 n.11 (D.D.C. Aug. 28, 2012)

(three-judge court) (“The constitutionality of section 5 was neither briefed nor argued to

us, and we express no opinion on this significant point. In fact, our Circuit has recently

held that section 5 is constitutional.”). It is also consistent with Texas’s prior

representations in this case. See 3/21/2012 Tr. 7-8 (“[W]e think Shelby County would

bind this Court and if the D.C. Circuit rejects the facial constitutional challenge in Shelby

County, that would in our view compel the three judge panel in this case to enter

judgment against us on the facial challenge.”).

Where a plaintiff seeks declaratory or injunctive relief under Sections 4 or 5 of the

VRA, a three-judge court is properly convened only to determine a jurisdiction’s bailout


13

eligibility, to enforce the Section 5 preclearance requirement, or to render a judicial

preclearance determination. See 42 U.S.C. 1973b(a)(5), 1973c(a); LaRoque v. Holder,

No. 10cv561, 2010 WL 3719928, at *1 (D.D.C. May 12, 2010). In cases such as this one

where the three-judge court is properly convened under Sections 4 or 5 of the VRA to

determine a plaintiff’s statutory claim and then reaches an alternative constitutional claim

upon denying statutory relief, this Court does so only by exercising pendent jurisdiction

over the constitutional claim:

If there is a claim in a case that must be heard by a three-judge court, that court has power to decide other claims in the case that, standing alone, would require only a single judge. It need not exercise this power. If it has disposed of the claim that required three judges, it may dissolve itself and remand to the single judge the other claims.

17A Wright & Miller, Federal Practice and Procedure §4235; see also 28 U.S.C.

1367(a) and (c); Northwest Austin, 573 F. Supp. 2d at 235 (pendent jurisdiction with

bailout claim); City of Rome v. United States, 472 F. Supp. 221, 236 (D.D.C. 1979)

(pendent jurisdiction with preclearance and bailout claims). In all other instances, the

constitutional question is determined by a single judge of this Court. See, e.g., LaRoque,

2010 WL 3719928, at *1-3 (denying three-judge court); Arizona v. Holder, 839 F. Supp.

2d 36 (D.D.C. 2012) (same); Shelby Cnty. v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011)

(one-judge merits determination); Response to Minute Order, Alaska v. Holder, No.

12cv1376 (D.D.C. Aug. 22, 2012) (conceding State not entitled to a three-judge court).

Importantly, the District Court for the District of Columbia has exclusive jurisdiction to

issue any declaratory judgment pursuant to Sections 4 and 5 of the VRA, and to enjoin

the execution or enforcement of, or any action of any federal officer or employee


14

pursuant to, those provisions. See 42 U.S.C. 1973l(b); see also H.R. Rep. No. 227, 97th

Cong., 1st Sess. 36 (1981) (1981 House Report) (explaining the basis for this grant of

exclusive jurisdiction).

Because Section 5’s constitutionality would otherwise be determined by a single

judge of the District Court for the District of Columbia who would be bound by the D.C.

Circuit’s controlling decision in Shelby County, a three-judge court exercising pendent

jurisdiction to decide the constitutionality of Sections 4(b) and 5, as is the case here, must

similarly follow Shelby County. Any decision to the contrary would constitute a

compelling reason to dissolve the three-judge court and remand the constitutional claim

to a single judge of this Court. Cf. 28 U.S.C. 1367(c)(4). The cases Texas cites neither

provide guidance in these unique circumstances nor counsel the opposite conclusion. Cf.

United States v. Ramsey, 353 F.2d 650, 658 (5th Cir. 1965) (rendering statutory

determinations under federal and state standards); Parker v. Ohio, 263 F. Supp. 2d 1100,

1105 (S.D. Ohio 2003) (adopting circuit precedent as to the existence of a certain

statutory claim under Section 2 of the VRA). Accordingly, this Court should reject

Texas’s claim that Congress exceeded its enforcement authority under the Fourteenth and

Fifteenth Amendments when it reauthorized Sections 4(b) and 5 in 2006. In any event,

the D.C. Circuit’s conclusion that Section 5 is a congruent and proportional response to

ongoing race-based voting discrimination in the covered jurisdictions is amply supported

by the legislative record Congress amassed in 2006.


15

B. The 2006 Legislative Record Demonstrates That Section 5’s Current Burdens Are Justified By Current Needs And That Its Disparate Geographic Coverage Is Sufficiently Related To Contemporary Racial Discrimination In Voting After independently examining the 2006 legislative record, the D.C. Circuit in

Shelby County recently determined that Congress reasonably identified an ongoing

pattern of constitutional violations in the covered jurisdictions and that its 2006

reauthorization of Section 5 (and its retention of the coverage criteria in Section 4(b)) was

a congruent and proportional means of enforcing the voting guarantees of the Fourteenth

and Fifteenth Amendments. See 679 F.3d at 865-883. Should this Court determine that

Shelby County is not binding authority and, therefore, reexamine the constitutional

questions presented in that case, this Court should nevertheless adopt the D.C. Circuit’s

comprehensive analysis of the same challenge Texas now raises.

1. In examining the 2006 legislative record for substantial probative evidence of

ongoing constitutional violations in the covered jurisdictions, the D.C. Circuit cited

“[j]ust a few” of the “numerous” modern instances of “flagrant racial discrimination” and

“overt hostility to black voting power by those who control the electoral process.” Shelby

Cnty., 679 F.3d at 865-866. It also emphasized additional evidence indicative of a pattern

of intentional racial discrimination in voting that justified Congress’s conclusions that

such discrimination remains “serious and widespread” and that Section 5 remains

necessary:

over 700 objections by the Attorney General between 1982 and mid-2006, including at least 423 objections based on discriminatory purpose between 1980 and 2004;


16

a consistent number of objections prior to and following the 1982 reauthorization, including 626 objections from 1982 to 2004 and 490 between 1965 and 1982;

over 800 proposed voting changes withdrawn or modified by covered jurisdictions

in response to the Attorney General’s “more information requests,” from which Congress could reasonably infer at least some discriminatory intent;

653 successful Section 2 actions in covered jurisdictions, some with findings of

intentional discrimination, providing relief from discriminatory practices in at least 825 counties;5

over 622 separate dispatches of multiple observers to covered jurisdictions (with

300 to 600 observers dispatched annually between 1984 and 2000) based on the likelihood of Fourteenth or Fifteenth Amendment violations;

at least 105 successful Section 5 enforcement actions against defiant jurisdictions;

and a roughly constant number of unsuccessful judicial preclearance actions by

covered jurisdictions since the VRA’s enactment in 1965, including 25 denials of judicial preclearance between 1982 and 2004.

Id. at 866-871; see also Shelby Cnty., 811 F. Supp. 2d at 464-492, 495-496 (citing

substantial probative evidence of intentional discrimination). The D.C. Circuit also

explained that Congress reasonably concluded that Section 2, which involves “intensely

complex[,] * * * costly[,] and time-consuming” litigation, was inadequate to protect

minority voters from the serious and widespread intentional discrimination that persisted

in covered jurisdictions. Shelby Cnty., 679 F.3d at 872. And the court stated that

“Congress had ‘some reason to believe that without [Section 5’s] deterrent effect on

potential misconduct,’ the evidence of continued discrimination in covered jurisdictions 5 Applicable nationwide, Section 2 permits individuals to bring suit against any State or jurisdiction to challenge voting practices that have either a discriminatory purpose or result. See 42 U.S.C. 1973(a); Thornburg v. Gingles, 478 U.S. 30, 35 (1986).


17

‘might be considerably worse.’” Id. at 871 (citation omitted). The court thus concluded

that “overt racial discrimination persists in covered jurisdictions notwithstanding decades

of section 5 preclearance” and that “section 5’s ‘current burdens’ are indeed justified by

‘current needs.’” Id. at 873 (quoting Northwest Austin, 557 U.S. at 203).

Satisfied that Congress reasonably concluded, based on the extensive record it

amassed in 2006, that racial discrimination in voting persisted in covered jurisdictions

and could not be remedied by case-by-case litigation alone, the D.C. Circuit properly

deferred to Congress’s judgment that Section 5 preclearance remains necessary in the

covered jurisdictions. See Shelby Cnty., 679 F.3d at 872-873. As the D.C. Circuit

explained, “[t]he point at which section 5’s strong medicine becomes unnecessary and

therefore no longer congruent and proportional turns on several critical considerations

* * * [that] are quintessentially legislative judgments.” Id. at 873. Because Congress

reached reasonable conclusions for each of those considerations—i.e., “the pervasiveness

of serious racial discrimination in voting in covered jurisdictions; the continued need for

section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation”—

based on substantial probative evidence in the legislative record, the court of appeals

correctly deferred to Congress’s primary authority to enforce the Constitution. Id.; see

also Northwest Austin, 557 U.S. at 205 (“The Fifteenth Amendment empowers

‘Congress,’ not the Court, to determine in the first instance what legislation is needed to

enforce it.”); Morgan, 384 U.S. at 648-53, 657 (recognizing Congress’s discretion in

deciding how to exercise its Fourteenth Amendment enforcement authority).


18

In urging this Court to reject Shelby County, Texas argues only that the evidence

Congress considered in 2006, and that Shelby County cited in support of an ongoing

pattern of constitutional violations, fails to show either violations of the Fifteenth

Amendment or the continued need for a preclearance remedy. Pl. Mem. 41-43. As an

initial matter, Texas emphasizes only the Fifteenth Amendment in its motion. Pl. Mem.

1-3, 7-9, 17. Because Congress expressly relied on its authority to enforce both the

Fourteenth and Fifteenth Amendments when it reauthorized Section 5 in 2006, however,

a pattern of constitutional violations of either Amendment, including intentional vote

dilution, is relevant to determining whether Congress reasonably concluded that Section 5

remains necessary to protect the rights of minority voters. See H.R. Rep. No. 478, 109th

Cong., 2d Sess. 90 (2006) (2006 House Report); Shelby Cnty., 679 F.3d at 864.

Furthermore, each of the arguments Texas now raises against the sufficiency of

the 2006 legislative record has been considered and rejected. Compare Pl. Mem. 41-43

with Shelby Cnty., 679 F.3d at 866-870 (explaining why the categories of evidence

Congress considered in 2006 are probative of an ongoing pattern of constitutional

violations). First, Congress is not bound by the standards of proof applicable in judicial

proceedings; rather, “[i]n identifying past evils, Congress obviously may avail itself of

information from any probative source.” South Carolina, 383 U.S. at 330. In addition,

Texas’s argument that Section 2 litigation and Section 5 enforcement actions demonstrate

that minority voters “have the wherewithal to bring the tools of traditional litigation

against laws or practices that might violate the Fifteenth Amendment” (Pl. Mem. 43),

ignores Section 5’s important prophylactic effect as well as its critical burden-shifting


19

mechanism, which the Supreme Court has consistently upheld as appropriate in light of

Congress’s “wide berth in devising appropriate remedial and preventative measures for

unconstitutional actions.” Lane, 541 U.S. at 520; see also City of Rome, 446 U.S. at 181-

182; South Carolina, 383 U.S. at 334-335; 2006 House Report 65-66 (finding that

burden-shifting has been and remains essential to Section 5’s effectiveness). Texas also

ignores Congress’s considered judgment in 2006, just as in prior reauthorizations of

Section 5, that Section 5 remains justified because Section 2 alone is inadequate to

protect racial minorities from serious and widespread voting discrimination in the

covered jurisdictions.6 See Shelby Cnty., 679 F.3d at 863-864, 872-873; see also, e.g.,

2006 House Report 57; 1981 House Report 33-35; H.R. Rep. No. 196, 94th Cong., 1st

Sess. 26-27 (1975) (1975 House Report); H.R. Rep. No. 397, 91st Cong., 1st Sess. 7-8

(1969) (1969 House Report). That inadequacy derives not from a current distrust of

federal judges (Pl. Mem. 43), but instead from the “uniquely harmful” nature of racial

discrimination in voting: “it cannot be remedied by money damages, and, as Congress

found, lawsuits to enjoin discriminatory voting laws are costly, take years to resolve, and

6 Indeed, the 2006 legislative record is replete with examples of Section 5 objections induced by the attempts of recalcitrant jurisdictions to evade the force of successful Section 2 actions or express findings of intentional discrimination. See, e.g., Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before the Subcomm. on the Constitution of the H. Judiciary Comm., 109th Cong., 1st Sess. 330-332, 340-343, 429-434, 607-608, 678-680, 795-797, 812-814, 907-910, 1141-1144, 1207-1210, 1360-1361, 1384-1386, 1388-1390, 1402-1404, 1516-1521, 1538-1540, 1574-1579, 1730-1732, 1823-1825, 1833-1836, 1935-1937, 1957-1959, 2041-2043, 2212-2213, 2269-2271, 2300-2303, 2307-2311 (2005) (Scope).


20

leave those elected under the challenged law with the benefit of incumbency.” Shelby

Cnty., 679 F.3d at 861.7

Because Texas has asserted no persuasive rationale for disturbing the D.C.

Circuit’s conclusion in Shelby County that Congress was justified in continuing to impose

the preclearance requirement on covered jurisdictions, Texas’s arguments against the

weight of the legislative record fail.8

7 Congress, for example, heard testimony that most Section 2 actions take two to five years to make their way through the court system, during which time the challenged practice most often remains in place, given the burden to obtain a preliminary injunction. Scope 101. Congress also heard that a candidate elected under what turns out to be an illegal voting scheme will nevertheless enjoy the significant advantages of incumbency in future elections. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Judiciary Comm., 109th Cong., 1st Sess. 13-14, 43-44 (2005); Voting Rights Act: Evidence of Continued Need, Hearing Before Subcomm. on the Constitution of the H. Judiciary Comm., 109th Cong., 2d Sess. 97 (2006) (Continued Need). In addition, in some cases, an illegal practice must remain in effect for several election cycles before Section 2 plaintiffs can gather enough evidence to show its discriminatory effect. Scope 92. Congress also heard that Section 2 places a heavy financial burden on minority voters challenging discriminatory practices, id. at 92, 97, especially at the local level and in rural areas, id. at 84; 2006 House Report 43. See generally Shelby Cnty., 679 F.3d at 872-873. 8 Texas’s failure to truly engage with the legislative record is hardly surprising given the State’s poor performance across all relevant indicators of ongoing constitutional violations. See, e.g., 2006 House Report 29 (20% gap between white and Latino citizens in voter registration in 2004); Continued Need 259 (105 Section 5 objections from 1982 to 2004); Scope 2194-2530 (copies of Section 5 objections preventing discriminatory changes at all levels of government and in every aspect of voter participation); Continued Need 2537, 2552 (1512 more information requests); 2006 House Report 83 (54 withdrawn submissions from 1982 to 2004); Continued Need 250 (29 successful Section 5 enforcement actions); id. at 207, 251 (206 Section 2 actions by minority plaintiffs with successful outcomes, forcing 197 jurisdictions to change their discriminatory practices); id. at 35 (judicial findings of racially polarized voting); Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry, Hearing

(continued…)


21

2. The D.C. Circuit also upheld Congress’s retention of Section 4(b)’s coverage

criteria, emphasizing that Section 5’s “disparate geographic coverage * * * depends not

only on section 4(b)’s formula, but on the statute as a whole.” Shelby Cnty., 679 F.3d at

873. The court explained that a literal reading of Section 4(b) misunderstands not only

Congress’s use of the triggers to cover specific jurisdictions, but also the way in which

the VRA’s three coverage-related provisions—Sections 4(b), 3(c), and 4(a)—together

isolate those areas in which intentional discrimination in voting persists. Id. at 873-883.

First, Section 4(b)—“reverse-engineered” to describe in objective terms those

jurisdictions Congress knew it wanted to cover because of their long histories of racial

discrimination in voting—reaches those jurisdictions with the worst historical and

current records of discrimination. Id. at 855, 873-879. Second, Section 3(c), the bail-in

provision, captures jurisdictions not covered under Section 4(b) that “nonetheless have

serious, recent records of voting discrimination” as shown by violations of the Fourteenth

or Fifteenth Amendments. Id. at 874. Finally, Section 4(a), the bailout provision,

(…continued) Before Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Judiciary Comm., 109th Cong., 2d Sess. Attach. to Statement of Nina Perales (2006) (Voting Rights in Texas, 1982-2006), available at http://judiciary.senate.gov/pdf/7-13-06ninaperales.pdf (last visited Oct. 22, 2012). In 2006, the Supreme Court found that Texas’s post-2000 Census mid-decade congressional redistricting plan “bears the mark of intentional discrimination.” LULAC v. Perry, 548 U.S. 399, 440 (2006). In addition, another three-judge panel of this Court recently found that Texas intentionally discriminated against minority voters when it drew new boundaries for its congressional and state senate districts following the 2010 decennial census. See Texas v. United States, No. 11cv1303, 2012 WL 3671924, at *18-21, *23-26 (D.D.C. Aug. 28, 2012), notice of appeal filed, (D.D.C. Aug. 31, 2012).


22

accounts for any over-inclusiveness in the coverage criteria and incentivizes jurisdictions

with recent records of voting discrimination to comply with specified nondiscrimination

measures and work toward bailout. See id. at 881-882.

In reviewing Congress’s decision to retain the coverage criteria in Section 4(b)

rather than develop new coverage triggers, the D.C. Circuit recognized Congress’s review

of ample evidence of significant, ongoing racial discrimination in voting in the covered

jurisdictions (i.e., those jurisdictions described by the criteria in Section 4(b) that had not

bailed out from coverage, including Texas) that could not be remedied by Section 2

alone. See Pt. I.B.1., supra. To further determine whether voting discrimination

remained concentrated in the jurisdictions subject to Section 5 preclearance, the D.C.

Circuit examined data comparing Section 2 outcomes in covered and non-covered

jurisdictions. See Shelby Cnty., 679 F.3d at 874-878. The court explained that if voting

discrimination were distributed evenly throughout the country, one would expect to find

fewer Section 2 suits with outcomes favorable to minority plaintiffs in covered

jurisdictions, where Section 5 would have blocked the implementation of discriminatory

practices. Id. at 878.

In fact, the evidence before Congress showed that covered jurisdictions were

responsible for 56% of all such reported Section 2 outcomes, or more than twice their

share (controlling for population) of such suits between 1982 and 2005. Shelby Cnty.,

679 F.3d at 874. The evidence further showed that “the rate of successful [reported]

section 2 cases in covered jurisdictions * * * is nearly four times the rate in non-covered

jurisdictions,” when controlling for population, and that the absolute rate of success is


23

higher in covered jurisdictions, with “40.5 percent of published section 2 decisions in

covered jurisdictions result[ing] in favorable outcomes for plaintiffs, compared to only 30

percent in non-covered jurisdictions.” Id. at 874-875. The evidence that discrimination

remained concentrated in covered jurisdictions became even more pronounced when the

court examined settled and unreported Section 2 suits with outcomes favorable to

minority plaintiffs. That information, derived from a study before Congress by the

National Commission on the Voting Rights Act and supplemented in Shelby County with

a study by Department of Justice historian Peyton McCrary, showed that 81% of all

Section 2 cases with outcomes favorable to minority plaintiffs were in the covered

jurisdictions. See id. at 875; see also Def. SMF ¶ 69. When the data are broken down by

State, there is a high correlation between the jurisdictions with the highest rate of such

cases, adjusted for population, and the jurisdictions covered by Section 5. See Shelby

Cnty., 679 F.3d at 875; see also Def. SMF ¶¶ 64, 67-69. Significantly, the data also

showed that two of the non-covered jurisdictions with a high rate of such Section 2

outcomes have at times been subject to preclearance under the bail-in mechanism. See

Shelby Cnty., 679 F.3d at 875-876, 881; see also Def. SMF ¶ 62 (citing to a list of 18

jurisdictions, including the States of Arkansas and New Mexico, ordered to obtain

preclearance under Section 3(c)).

In upholding Section 4(b)’s constitutionality, Shelby County also emphasized the

importance of the “liberalized bailout mechanism” to its congruence and proportionality

analysis. 679 F.3d at 882. As interpreted by Northwest Austin, the VRA’s bailout

provision affords any covered jurisdiction (down to the smallest level) that has not


24

discriminated in voting for ten years an opportunity to terminate coverage, thereby

ensuring that preclearance remains targeted at the jurisdictions with the current worst

records of discrimination. Thus far, bailout has been granted in 36 cases since the current

bailout provision became effective in 1984, including 18 cases in the three years since

Northwest Austin significantly expanded bailout eligibility. Def. SMF ¶¶ 57, 59. As a

result, a total of 30 county-level jurisdictions and 160 smaller jurisdictions (for a total of

190 jurisdictions) have been granted bailout since 1984, with 64% of those jurisdictions

having bailed out since Northwest Austin. Def. SMF ¶¶ 57-59.9 There are also two

pending bailout actions in which the Attorney General has notified the plaintiff

jurisdictions that he will consent to bailout, and another bailout action in which the

Attorney General has yet to be served. Def. SMF ¶ 61. The Attorney General fully

supports the use of bailout to enable jurisdictions to terminate their preclearance

obligations when appropriate.

After considering the evidence of ongoing racial discrimination in jurisdictions

covered by Section 4(b), including the Section 2 evidence from covered and non-covered

jurisdictions, as well as the important role of bail-in and bailout in fine-tuning Section 5’s

reach, the D.C. Circuit concluded that Section 4(b) “continues to single out the

9 The 18 bailouts granted following Northwest Austin include the first-ever bailouts from jurisdictions in Alabama, California, Georgia, and Texas; the first bailout from a jurisdiction in North Carolina since 1967; the largest bailout at least since 1984, in terms of population, in Prince William County, Virginia; and the largest bailout at least since 1984, in terms of the number of subjurisdictions, in Merced County, California, which included some 84 such subjurisdictions. Def. SMF ¶ 60.


25

jurisdictions in which discrimination is concentrated.” Shelby Cnty., 679 F.3d at 883. In

urging this Court to disturb the judgment of Congress and the court of appeals, Texas

argues only that successful Section 2 litigation does not reflect a continued need to

impose a preclearance remedy. Pl. Mem. 44. Although Shelby County relied on Section

2 outcomes as a means of comparing current levels of voting discrimination in covered

and non-covered jurisdictions given Section 5’s geographic limits, see 679 F.3d at 879, it

cautioned that the data “does not tell the whole story.” 679 F.3d at 878. Instead, the

court explained that the Section 2 data had to be considered alongside further substantial

probative evidence, including Section 5’s deterrent and blocking effect, amassed by

Congress that showed that serious and widespread voting discrimination persists in the

covered jurisdictions despite Section 5. See id. at 880-881.

Texas also faults the court of appeals for looking past “the coverage formula’s

default rule” and emphasizing the importance of bail-in and bailout in defining Section

5’s reach. Pl. Mem. 44. Yet Texas cites no authority for its position that the VRA’s bail-

in and bailout provisions are irrelevant to a court’s application of the congruence and

proportionality standard in this context. Indeed, in applying congruence and

proportionality review, the Supreme Court has repeatedly emphasized the need to

consider “[t]he remedy Congress chose,” including any meaningful limitations placed on

its scope. Lane, 541 U.S. at 531-532. The Court has used the VRA’s bailout provision as

an example of such a meaningful limitation. See City of Boerne v. Flores, 521 U.S. 507,

533 (1997) (“[L]imitations of this kind tend to ensure Congress’ means are proportionate

to ends legitimate under § 5.”); see also Nevada Dep’t of Human Res. v. Hibbs, 538 U.S.


26

721, 738-740 (2003); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav.

Bank, 527 U.S. 627, 646-647 (1999). And the Supreme Court consistently has referred to

Section 5 approvingly in its constitutional-authority cases. See Lane, 541 U.S. at 519

n.4; Hibbs, 538 U.S. at 737-738; Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.

356, 373 (2001); Boerne, 521 U.S. at 526; see also Shelby Cnty., 679 F.3d at 859.

Finally, although Texas argues that no State has successfully relied on the bailout

mechanism to terminate coverage (Pl. Mem. 45), it has not shown that “anything about

the bailout criteria themselves or how the Attorney General is applying them is

preventing jurisdictions with clean records from escaping section 5 preclearance.” Shelby

Cnty., 679 F.3d at 882. Thus, the D.C. Circuit correctly considered the important role of

bail-in and bailout when determining the constitutionality of Section 4(b). Texas’s facial

challenge to Section 4(b) therefore fails.

II

SECTION 5’S EFFECTS PRONG IS VALID PROPHYLACTIC LEGISLATION

Because it failed to show the absence of a retrogressive effect under these facts,

Texas specifically challenges the constitutionality of Section 5’s effects prong, or non-

retrogression requirement, arguing that the existence of the purpose prong renders the

effects prong invalid. Pl. Mem. 3, 16. Since its enactment, however, the Supreme Court

consistently has upheld Section 5’s dual-pronged preclearance requirement as appropriate

legislation to enforce the Fifteenth Amendment. See South Carolina v. Katzenbach, 383

U.S. 301, 323-337 (1966); Georgia v. United States, 411 U.S. 526, 535 (1973); City of

Rome, 446 U.S. at 172-183; Lopez v. Monterey Cnty., 525 U.S. 266, 282-285 (1999). In


27

addition, Shelby County upheld, based on the sufficiency of the 2006 legislative record as

well as Congress’s primary authority to enforce the Fourteenth and Fifteenth

Amendments, Congress’s decision to continue to prohibit covered jurisdictions from

making any change in their voting practices, no matter how minor, without first showing

that the change “neither has the purpose nor will have the effect of denying or abridging

the right to vote on account of race or color” or membership in a language minority

group. 679 F.3d at 853 (quoting 42 U.S.C. 1973c(a)). Although the court of appeals did

not address the specific challenge Texas now raises, it held that the continued imposition

of Section 5 preclearance for all voting changes in the covered jurisdictions is appropriate

legislation to enforce the Fourteenth and Fifteenth Amendments. See Shelby Cnty., 679

F.3d at 861, 873. For that reason alone, this Court should reject Texas’s facial attack on

the continued constitutionality of the effects prong.10 Even if this Court considers

10 Texas characterizes its challenge as an attack on Section 5 “as interpreted by this Court,” Pl. Mem. 14, but its brief raises more of a challenge to this Court’s decision to deny preclearance than it does an as-applied challenge to the statute’s constitutionality in this context. Because the State requests that the Court, at a minimum, declare Section 5 invalid as to all voting changes (Pl. Mem. 2, 9, 45), Texas clearly asserts a facial challenge to the non-retrogression requirement. See John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2817 (2010). Because of the nature of its challenge, Texas bears the heavy burden of demonstrating that there is no set of circumstances under which the legislation would be valid, or at a minimum, that it lacks a plainly legitimate sweep. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449-450 (2008). To the extent Texas seeks to challenge this Court’s interpretation of the non-retrogression requirement or its application of Section 5 to the facts of this case, Texas may do so on appeal from this Court’s decision to deny preclearance. This brief responds only to Texas’s constitutional challenge, and only to the extent it actually asserts such an argument. This brief will not respond to the State’s mischaracterization of this Court’s

(continued…)


28

Texas’s argument anew, however, this Court should uphold the effects prong as

congruent and proportional legislation designed to remedy and deter intentional voting

discrimination.

1. Texas argues that Section 5’s effects prong is not congruent and proportional

legislation because Congress failed to establish a record of Fifteenth Amendment

violations that could be remedied only by a dual-pronged preclearance requirement. Pl.

Mem. 9, 17-18. In so arguing, however, Texas misapplies the three-step congruence and

proportionality standard. The first step in congruence and proportionality analysis is “to

identify with some precision the scope of the constitutional right at issue.” Garrett, 531

U.S. at 365. In this case, the right is to be free from racial discrimination in voting

embodied in the Fourteenth and Fifteenth Amendments. After the right at issue has been

defined, the next question is whether Congress identified “a history and pattern” of

constitutional violations that justified the exercise of its enforcement authority under the

Fourteenth and Fifteenth Amendments. Id. at 368. The Supreme Court has recognized

that it is “easier for Congress to show a pattern of * * * constitutional violations,” where

a state actor discriminates in voting on the basis of race, because that violates the most

fundamental constitutional right on the most constitutionally suspect basis, and strict

scrutiny thus applies. Hibbs, 538 U.S. at 736; see also Lane, 541 U.S. at 561-563 (Scalia,

(…continued) opinion, attempts to relitigate the denial of preclearance, or speculation as to what this Court might have decided had Texas enacted a different law or presented different evidence at trial. See, e.g., Pl. Mem. 1, 14-15, 19-20, 26-33.


29

J., dissenting). If this Court finds that Congress identified such a pattern of violations,

then it must consider whether the challenged legislation (i.e., the dual-pronged

preclearance requirement) is a congruent and proportional means of remedying those

violations. Boerne, 521 U.S. at 520.

In arguing against the continued constitutionality of Section 5’s effects prong,

Texas conflates the second and third steps of the constitutional analysis by arguing that

Congress, in step two, must establish a record of violations that could only be prevented

by a preclearance remedy that requires covered jurisdictions to show that their proposed

changes lack both a discriminatory purpose and effect. Pl. Mem. 17-18. Properly

applied, however, the second step of Boerne looks only to the record of constitutional

violations Congress amassed in support of its exercise of its enforcement authority, not

whether those individual violations could be remedied by either Section 2 alone or a

purpose-only preclearance requirement. It is only in the third step of Boerne that a court

examines the appropriateness of the remedial measure Congress decided upon based on

the documented record of constitutional violations. In applying this step, deference is

accorded Congress’s choice of means to deter and remedy the identified violations. Here,

Texas reads out of Boerne the third step of the constitutional analysis.

Texas’s misapplication of Boerne is hardly inadvertent. Congress acts at the peak

of its enforcement authority when it legislates to combat racial discrimination in voting.

See Hibbs, 538 U.S. at 738. And the Constitution assigns to Congress primary authority

for determining how to remedy that problem. See Northwest Austin, 557 U.S. at 205; see

also Shelby Cnty., 679 F.3d at 860-862. For that reason, the Supreme Court has


30

acknowledged the need for Congress to use “strong remedial and preventative measures”

under its enforcement powers “to respond to the widespread and persisting deprivation of

constitutional rights resulting from this country’s history of racial discrimination.”

Boerne, 521 U.S. at 526; see also Lane, 541 U.S. at 561-564 (Scalia, J., dissenting).

Congress is not without limits in its choices—the choice must be a congruent and

proportional response to the identified problem. See Shelby Cnty., 679 F.3d at 859. But

it is Congress that has expertise in choosing among available legislative options. That is

particularly true—and deference particularly warranted—when Congress “ha[s] already

tried unsuccessfully to address” the problem through other legislative means, but has

found the problem to be “difficult and intractable,” as is the case here. Hibbs, 538 U.S. at

737 (citation omitted).

Because the D.C. Circuit in Shelby County correctly identified the right Congress

sought to enforce when it enacted Section 5, i.e., the prohibition on racial discrimination

in voting, as well as a history and ongoing pattern of unconstitutional conduct that

supports the need for a preclearance remedy, see Pt. I.B., supra, this Court need only

decide whether Congress’s retention of the effects prong in 2006 was an appropriate

response to the identified history and pattern of constitutional violations. See Lane, 541

U.S. at 530. This Court should answer that question in accordance with established

precedent and uphold Section 5’s effects prong as appropriate enforcement legislation.11

11 Texas mistakenly argues that the effects prong incorporates into Section 5 “precisely what the Supreme Court rejected in City of Boerne: a decision ‘to dispense with proof of

(continued…)


31

2. In challenging the effects prong as invalid prophylactic legislation, Texas

primarily argues that a dual-pronged preclearance remedy that requires it to show the

absence of both discriminatory purpose and effect cannot be thought to enforce the

Fifteenth Amendment because the purpose prong alone ensures the proposed change is

constitutional. Pl. Mem. 17-18. But Texas concedes (Pl. Mem. 12, 18), as it must, that

Congress may deter and remedy constitutional violations by prohibiting conduct that does

not itself violate the Fourteenth or Fifteenth Amendments, see Lane, 541 U.S. at 520,

Hibbs, 538 U.S. at 727-728; Garrett, 531 U.S. at 365; Boerne, 521 U.S. at 518. Section

5’s dual-pronged preclearance requirement does precisely this, and is based on

Congress’s constitutional authority to deter and remedy persistent discrimination in the

covered jurisdictions and to protect the significant progress minority voters have made

over the past 45 years, as a direct result of Section 5, despite such discrimination. See

2006 Reauthorization, §2(a)-(b), 120 Stat. 577-578; 2006 House Report 6-12, 65-66.

The Supreme Court’s most extensive discussion of the constitutionality of Section

5’s effects prong is in City of Rome, which involved the denial of judicial preclearance

based on the city’s failure to show certain electoral changes and annexations would not

(…continued) deliberate and overt discrimination and instead concentrate on a law’s effects.’” Pl. Mem. 20 (quoting Boerne, 521 U.S. at 517). The quoted language from Boerne, however, concerns the requirement that Congress demonstrate a record of constitutional violations before exercising its enforcement authority. See 521 U.S. at 517. Once that record is established, Congress can prohibit conduct that is both clearly unconstitutional and merely suggestive of, or indicative of, unconstitutional conduct in order to enforce the Constitution’s voting guarantees.


32

have a discriminatory effect, even after the city showed that the changes and annexations

had not been enacted for a discriminatory purpose. See 446 U.S. at 172. The city argued

that, despite its plain language, Section 5 “[could] not be read as prohibiting voting

practices that have only a discriminatory effect” because to do so would render the statute

unconstitutional. Id. at 172-173. In rejecting the city’s constitutional challenge, the

Supreme Court stated that even though the Fifteenth Amendment prohibits only

purposeful discrimination, Congress may, under its authority to enforce the Constitution’s

voting guarantees, prohibit state action that perpetuates the effects of past discrimination.

See id. at 173, 176. The Court explained that, in upholding Section 5, South Carolina

had recognized Congress’s “full remedial powers to effectuate the constitutional

prohibition against racial discrimination in voting,” id. at 174 (quoting South Carolina,

383 U.S. at 326), and, thus, to enact legislation “to carry out the objects the [Civil War]

amendments have in view, * * * to enforce submission to the prohibitions they contain,

and to secure to all persons the enjoyment of perfect equality of civil rights and the equal

protection of the laws,” id. at 175 (quoting Ex parte Virginia, 100 U.S. 339, 346 (1879)

(alteration in original)).

The Supreme Court further explained that, in reviewing Congress’s exercise of its

broad enforcement power, South Carolina had upheld not only Section 5’s preclearance

requirement, but also Congress’s ban on literacy tests, though facially constitutional and

even where fairly administered, because of their past discriminatory use and present

ability to freeze in place the effect of past discrimination. See City of Rome, 446 U.S. at

175-176. The Court stated that its holding reaffirming the constitutionality of the effects


33

prong was consistent with the Court’s previous recognition, in other cases, that Congress

enjoyed a broad power to enforce the Fourteenth and Fifteenth Amendments. See id. at

176. In particular, the Court cited Morgan, in which it upheld legislation to enforce equal

protection guarantees, even though the outlawed voting practices might not themselves

violate the Fourteenth Amendment, and Oregon v. Mitchell, 400 U.S. 112 (1970), in

which it upheld a five-year nationwide ban on literacy tests as appropriate to remedy

“earlier, purposeful racial discrimination,” regardless of whether the practices were now

discriminatory only in effect. City of Rome, 446 U.S. at 176-177. The Court stated that,

in enforcing the Fifteenth Amendment, Congress may prohibit even constitutional

conduct, “so long as the prohibitions attacking racial discrimination in voting are

‘appropriate.’” Id. at 177. Accordingly, the Court stated it would not “disturb Congress’

considered judgment that banning electoral changes that have a discriminatory impact is

an effective method of preventing States from undoing or defeating the rights recently

won by [minority voters].” Id. at 178 (quotation marks and alterations omitted).

In doing so, the majority in City of Rome rejected the dissent’s argument (and

Texas’s argument here, Pl. Mem. 23-24) that Congress could not validly require a

jurisdiction to show that its proposed change had no discriminatory effect once that

jurisdiction had demonstrated the absence of a discriminatory purpose. See 446 U.S. at

209-214 (Rehnquist, J., dissenting). In that case, the dissent emphasized the district

court’s finding that the city had not engaged in purposeful voting discrimination for

nearly 20 years. See id. at 211. Even the dissent conceded, however, that Congress’s

prohibition on state action that “is not purposefully discriminatory may nevertheless be


34

appropriate remedial legislation under the Civil War Amendments” if the prohibition is

“necessary [either] to remedy prior constitutional violations by the governmental unit, or

* * * to effectively prevent purposeful discrimination by a governmental unit.” Id. at

213.

In enacting and retaining a remedial scheme that, inter alia, bars new electoral

procedures that will have a discriminatory effect on racial minorities, Congress, in 2006,

appropriately exercised its enforcement authority under the Fourteenth and Fifteenth

Amendments, as it has done in the past, to overcome the continuing effects of past racial

discrimination in voting, to prevent its recurrence, and to prohibit conduct as to which a

strong inference of discriminatory purpose exists. See, e.g., 2006 House Report 21-24,

65-66; 1981 House Report 3-4, 7-20; 1975 House Report 6-11, 26-27, 57-58; 1969 House

Report 3, 6-8; H.R. Rep. No. 439, 89th Cong., 1st Sess. 6, 8-11, 15, 19 (1965) (1965

House Report). Congress’s continued reliance on Section 5, including its effects prong,

as a preventative and remedial measure is based on its extensive documentation of an

identified history and ongoing pattern of intentional voting discrimination in the covered

jurisdictions. See Pt. I.B., supra. It is also based on Congress’s considered judgment

that, in order to deter and remedy those constitutional violations and to secure the

significant progress minority voters have made in the exercise of their voting rights

despite such intentional discrimination, jurisdictions must show that their proposed

voting changes will not have a retrogressive effect. See 2006 Reauthorization, §2, 120

Stat. 577-578; 2006 House Report 24-56; see also City of Rome, 446 U.S. at 176, 178


35

(requiring a jurisdiction to show neither discriminatory purpose nor effect is an effective

and appropriate means of enforcing the Constitution).

Thus, contrary to Texas’s assertion, Section 5’s effects prong does not function

merely to prevent intentional discrimination that may “slip through the cracks,” Pl. Mem.

16, because of, inter alia, a difficulty in proving either discriminatory intent or the subtle

use of discriminatory techniques.12 Rather, Section 5’s ban on changes that will have a

discriminatory effect is also intended to deter and remedy persistent racial discrimination

in voting in the covered jurisdictions by precluding new practices that perpetuate the

effects of past discrimination and undo the significant progress minority voters have

made with respect to their full participation in the electoral process. See United States v.

Beer, 425 U.S. 130, 140-141 (1976) (“Section 5 * * * insure[s] that the gains thus far

achieved in minority political participation shall not be destroyed through new

discriminatory procedures and techniques.”) (citation and alterations omitted); id. at 141

(Section 5 “insure[s] that no voting-procedure changes would be made that would lead to

a retrogression in the position of racial minorities with respect to their effective exercise

12 Nor does requiring a jurisdiction to show its proposed voting change was not enacted with any discriminatory purpose necessarily preclude all intentionally discriminatory voting changes from taking effect. Pl. Mem. 16. For example, where a covered jurisdiction puts forward a nondiscriminatory reason for a proposed electoral change after having assembled a scant legislative record or made broad assertions of privilege, it may be difficult for litigants, despite the existence of an underlying discriminatory purpose, to effectively challenge the jurisdiction’s asserted justification as pretextual. Denying preclearance based on a change’s anticipated discriminatory effect, which is itself an “important starting point” for any purpose inquiry, see Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977), therefore both deters and protects against intentional racial discrimination.


36

of the electoral franchise.”). Based on a demonstrated pattern of serious and widespread

constitutional violations in the covered jurisdictions, Congress could reasonably conclude

that enforcing the Constitution’s voting guarantees in areas with enduring discrimination

required a temporary ban on changes with a racially discriminatory effect, regardless of

whether discriminatory purpose, or lack thereof, is shown for any particular voting

change. Indeed, in 2006, Congress specifically found “that the existence of Section 5

deterred covered jurisdictions from even attempting to enact discriminatory voting

changes.” 2006 House Report 24; see also Shelby Cnty., 679 F.3d at 871-872. In fact,

two judges of this Court, in response to South Carolina’s enactment and proposed

administration of its photo ID law, recently noted Section 5’s “vital function” in deterring

jurisdictions from enacting restrictive, discriminatory voting practices. South Carolina v.

Holder, No. 12cv203, 2012 WL 4814094, at *21 (D.D.C. Oct. 10, 2012) (three-judge

court) (Bates, J., concurring); id. at *22 (“Section 5 * * * deter[s] problematic, and hence

encourag[es] non-discriminatory, changes in state and local voting laws.”).

Nor is Section 5 impermissible prophylactic legislation because it differs from the

narrower ban on literacy tests and similar registration requirements that Texas cites

approvingly in its brief. Pl. Mem. 13-14. Unlike the outright, nationwide ban on literacy

tests in state and federal elections, Section 5 applies only to those jurisdictions with

extensive records of unconstitutional conduct. Thus, while the nationwide ban on literacy

tests reaches only one type of potentially discriminatory practice, it is an absolute

prohibition on that practice that applies nationwide; conversely, Section 5 reaches a broad

range of voting practices but applies only in those areas with a demonstrated history of


37

actual voting discrimination and is not an outright ban. Given the broad discretion

Congress has to decide on appropriate remedial measures to enforce the Constitution’s

prohibition on racial discrimination in voting, the Supreme Court has cited both remedies

and the cases upholding them, i.e., South Carolina, City of Rome, and Mitchell,

approvingly in its constitutional-authority cases. See Lane, 541 U.S. at 519 n.4; Florida

Prepaid, 527 U.S. at 638-639; Boerne, 521 U.S. at 518, 526-527, 532-533.13

Importantly, in deciding on Section 5’s dual-pronged preclearance requirement as

the most appropriate remedial measure to combat the extensive record of an ongoing

pattern of voting discrimination in the covered jurisdictions, Congress also placed

meaningful limitations on Section 5’s scope—e.g., its application only to jurisdictions

with the worst historical and current records of voting discrimination; its expiration after

13 Nor does Congress’s retention of the effects prong conflict with Oregon v. Mitchell. Pl. Mem. 21-22. Unlike the nationwide ban on literacy tests upheld in that case, Section 5 is not a blanket prohibition on voter ID laws. Rather, covered jurisdictions, based on their records of intentional discrimination, need only first demonstrate that their proposed voting changes lack a discriminatory purpose or effect. In fact, Texas secured Section 5 preclearance for its preexisting voter ID law. See Def. SMF ¶ 25. Thus, a jurisdiction’s failure to gain preclearance “can only be attributed to its own officials, and not the operation of the Act.” City of Rome, 446 U.S. at 183; Texas, 2012 WL 3743676, at *32-33. Also, Section 5 is a response to covered jurisdictions’ reliance on numerous and ever-changing discriminatory devices and techniques to intentionally thwart the effective participation of racial minorities in the electoral process. See, e.g., Beer, 425 U.S. at 140; Shelby Cnty., 679 F.3d at 853-855; 2006 House Report 65-66; 1975 House Report 10, 26-27, 57-58; 1969 House Report 7-8; 1965 House Report 10-11. Section 5 is limited to those jurisdictions with a history and ongoing pattern of voting discrimination; Congress was not also required to establish a record of constitutional violations as to each type of voting change that a jurisdiction might enact or employ discriminatorily, e.g., photo ID legislation, before subjecting that type of change to preclearance. Compare, e.g., Pl. Mem. 21-22 with South Carolina, 383 U.S. at 334-335.


38

25 years, with congressional review after 15 years; and continued bailout eligibility for

jurisdictions that comply with specified nondiscrimination measures for ten years—

thereby ensuring its congruence and proportionality to the targeted harm. See Boerne,

521 U.S. at 530, 532-533; Garrett, 531 U.S. at 373; see also Shelby Cnty., 811 F. Supp.

2d at 498-503. Accordingly, this Court should adhere to established Supreme Court

precedent and uphold Section 5’s effects prong as appropriate enforcement legislation.

Because Section 5 is valid enforcement legislation, it does not violate the Tenth

Amendment or Article IV of the Constitution. Cf. Pl. Mem. 6. The Supreme Court has

explained that “the Reconstruction Amendments by their nature contemplate some

intrusion into areas traditionally reserved to the States.” Lopez, 525 U.S. at 282. See also

id. at 284-285; Boerne, 521 U.S. at 518; City of Rome, 446 U.S. at 178-180, 182 n.17.

III

SECTION 5 DOES NOT VIOLATE EQUAL PROTECTION PRINCIPLES

Texas also argues that Section 5 violates the Equal Protection Clause because the

non-retrogression requirement (a) prohibits only those voting changes that have a

discriminatory effect on racial minorities, not those that disproportionately burden non-

minority voters, and (b) forces jurisdictions to engage in race-based decisionmaking. Pl.

Mem. 24-25. The Fifth Amendment (which incorporates equal protection principles), see

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213-218 (1995), is not violated by

Section 5’s non-retrogression principle, which has a race-conscious, but “limited[,]

substantive goal: ‘to insure that no voting-procedure changes would be made that would

lead to a retrogression in the position of racial minorities with respect to their effective


39

exercise of the electoral franchise,’” Bush v. Vera, 517 U.S. 952, 982-983 (1996)

(quoting Beer, 425 U.S. at 141).

1. It is well-settled that the narrowly tailored consideration of race may be

warranted to achieve the compelling governmental interest in remedying the effects of

identified state-sponsored intentional discrimination for which a strong basis in evidence

exists that remedial action is necessary. See, e.g., Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007); Bush v. Vera, 517 U.S. at 981-983;

Shaw v. Hunt, 517 U.S. 899, 908-910 (1996); Miller v. Johnson, 515 U.S. 900, 904, 920-

921 (1995); Adarand, 515 U.S at 227. Section 5’s non-retrogression requirement—which

is based on Congress’s extensive findings of official discrimination against racial

minorities in the covered jurisdictions and the need for a strong remedial and preventative

measure, see Pts. I.B. & II, supra—satisfies strict scrutiny and, therefore, is

constitutional.14

First, the Supreme Court has long recognized that Congress’s enactment of

“Section 5 was directed at preventing a particular set of invidious practices that had the

effect of undoing or defeating the rights recently won by nonwhite voters.” Miller, 515

U.S. at 925 (citation, internal quotation marks, and alterations omitted). Thus, the non-

14 In LaRoque v. Holder, this Court rejected an equal protection challenge to the 2006 amendments to Section 5. See 831 F. Supp. 2d 183, 231-238 (D.D.C. 2011), vacated as moot, 679 F.3d 905 (D.C. Cir. 2012), petition for cert. pending, No. 12-81 (filed Jul. 20, 2012). In doing so, the court stated both that Congress “has identified historical and ongoing intentional discrimination that strikes at the heart of two of the most important rights protected by the Constitution” and that the government “has a compelling interest in remedying discrimination in voting.” 831 F. Supp. 2d at 233; see also id. at 235.


40

retrogression principle of Section 5 has always been race-conscious in that it denies

preclearance only to voting changes that “would lead to a retrogression in the position of

racial minorities with respect to their effective exercise of the electoral franchise.” Beer,

425 U.S. at 141; see also 28 C.F.R. 51.54(b). In doing so, the government has properly

limited its consideration of race to further its compelling interest in remedying the

specific “identified” harm, i.e., voting discrimination by covered jurisdictions against

racial minorities. Shaw, 517 U.S. at 909 (citation omitted); see also LULAC, 548 U.S. at

518-519 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part)

(“Congress enacted § 5 [as a necessary remedy for identified past discrimination] * * *

and that provision applies only to jurisdictions with a history of official discrimination.”).

Second, Section 5’s effects prong is narrowly tailored to achieve the compelling

interest in remedying state-sponsored intentional discrimination. Importantly, Section 5

was enacted only after Congress tried unsuccessfully to address the problem of racial

discrimination in voting in particular areas of the country through other means. The non-

retrogression requirement applies only in covered jurisdictions, and only for so long as

Congress reasonably determines the preclearance remedy remains necessary or until a

jurisdiction bails out from coverage. Moreover, the non-retrogression requirement

forbids covered jurisdictions only from enacting those voting changes that would worsen

the position of minority voters relative to the status quo; it does not require changes to

improve electoral opportunities for minority voters. See Bush v. Vera, 517 U.S. at 982-

983; Beer, 425 U.S. at 141; cf. LULAC, 548 U.S. at 519 (Scalia, J.). Finally, the

retrogression standard is a flexible one in which the Attorney General considers, inter


41

alia, “the extent to which a reasonable and legitimate justification for the change exists,”

28 C.F.R. 51.57(a), and the ameliorative efforts a jurisdiction has taken to counteract any

anticipated retrogressive effect, see 28 C.F.R. 51.57(d). Thus, the Attorney General

assesses whether a proposed voting change, when considered against remaining means

available to voters, dismantles the progress minority voters have made with respect to

their effective exercise of the electoral franchise. Because the effects prong satisfies

strict scrutiny, Texas’s equal protection claim fails. Cf. Grutter v. Bollinger, 539 U.S.

306, 327 (2003) (“Not every decision influenced by race is equally objectionable, and

strict scrutiny is designed to provide a framework for carefully examining the importance

and the sincerity of the reasons advanced by the governmental decisionmaker for the use

of race.”).15

2. Texas also argues that Section 5 requires jurisdictions to engage in race-based

decisionmaking. Pl. Mem. 25. The opinions Texas cites, however, caution only that

Section 5, in the redistricting context, could encourage States to subordinate traditional

districting principles to race-based line-drawing. See Pl. Mem. 25 (citing Georgia v.

Ashcroft, 539 U.S. 461 (2003), Miller v. Johnson, and the dissent in Shelby County).

15 Moreover, in photo ID cases such as this one, the denial of preclearance based on a law’s likely retrogressive effect on minority voters accrues to the benefit of all voters who lack, or cannot readily obtain, an acceptable form of photo ID. This is generally true in ballot access cases, e.g., voter ID laws, registration requirements, early voting changes, and polling place changes. Likewise, all eligible voters committed to a fair democracy, not simply eligible minority voters, benefit from laws that safeguard election integrity while ensuring the right to vote is not denied or abridged on account of race or color. Cf. South Carolina v. Holder, 2012 WL 4814094, at *21 (Bates, J., concurring).


42

This Court, however, must examine what the statute, by its terms, requires; speculation

over how Section 5 may be applied by covered jurisdictions in one context is not a basis

for invalidating the statute. See Washington State Grange, 552 U.S. at 450-451; Ohio v.

Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990).16 Thus, even if the concerns

Texas raises with respect to Section 5’s application to redistricting were valid, which they

are not, Texas “would not have established that no set of circumstances exists,” Shelby

Cnty., 679 F.3d at 884 (citation and internal quotation marks omitted), under which the

effects prong complies with equal protection principles and therefore is facially invalid.

Indeed, reaching Texas’s challenge in this case “would lead [this Court] into the very

kind of speculation and anticipation of constitutional questions that require courts to

disfavor facial challenges.” Id. (citation, internal quotation marks, and alterations

omitted); see also United States v. Raines, 362 U.S. 17, 20-22 (1960).

Moreover, Texas’s equal protection argument supposes that the unconstitutional

decisionmaking in violation of the Equal Protection Clause would not be by the United

States, but by the State itself, under alleged compulsion by the Attorney General. Yet

Texas points to nothing in Section 5 that, on its face, purports to authorize or permit the

Attorney General to encourage or ratify such unconstitutional conduct by covered

jurisdictions. The Supreme Court has made clear that when a jurisdiction adheres to

16 Had Texas sought to challenge Section 5’s application in the redistricting context, it could have done so in its judicial preclearance action for its three most recent redistricting plans; as the district court explained in its opinion denying preclearance, however, Texas never raised a constitutional challenge in the trial court. See Texas v. United States, No. 11cv1303, 2012 WL 3671924, at *8 n.11 (D.D.C. Aug. 28, 2012) (three-judge court).


43

traditional districting principles, its failure to create majority-minority districts does not

by itself constitute intentional discrimination in violation of Section 5. See Miller, 515

U.S. at 924; Shaw, 517 U.S. at 911-913. The Attorney General acknowledges that

principle and has consistently applied it since the decisions in Miller and Shaw. See 28

C.F.R. 51.59(b); Guidance Concerning Redistricting Under Section 5 of the Voting

Rights Act, 76 Fed. Reg. 7470 (Feb. 9, 2011); Guidance Concerning Redistricting and

Retrogression Under Section 5 of the Voting Rights Act, 66 Fed. Reg. 5412, 5413 (Jan.

18, 2001).

Moreover, the Supreme Court had already stated prior to Beer that Section 5 could

not be read as imposing an inflexible prohibition on retrogression. See City of Richmond

v. United States, 422 U.S. 358 (1975). The Attorney General has long recognized that

the prohibition on retrogression does not “require the reflexive imposition of objections

in total disregard of the circumstances involved or the legitimate justifications in support

of changes that incidentally may be less favorable to minority voters.” Revision of

Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 52 Fed.

Reg. 488 (Jan. 6, 1987). The Attorney General also has stated that retrogression can be

justified when a redistricting plan that maintains preexisting minority voting strength

would violate the Constitution; thus, a retrogressive plan must nonetheless be precleared

if the only alternative is a plan that would subordinate traditional districting principles in

violation of Shaw and Miller. See 66 Fed. Reg. at 5413. The Attorney General continues

to adhere to statutory and constitutional requirements when making Section 5

determinations. See 76 Fed. Reg. at 7472; 28 C.F.R. 51.55 & 51.56. Because the


44

concerns Texas raises are not implicated in this case and the State provides no support for

its assertions, this Court should deny its equal protection claim and uphold Section 5.

IV

SECTION 5 IS NOT UNCONSTITUTIONALLY VAGUE

Texas also argues that Section 5 is unconstitutionally vague and permits the

Attorney General and lower courts unfettered discretion to deny preclearance. Because

the legal standard that covered jurisdictions must satisfy to obtain preclearance is well-

established, Section 5 complies with due process principles and Texas’s argument fails.

“A fundamental principle [of Fifth Amendment due process] is that laws which

regulate persons or entities must give fair notice of conduct that is forbidden or required.”

F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) (citing Connally v.

General Constr. Co., 269 U.S. 385, 391 (1926)). The “void-for-vagueness doctrine”

responds to two primary due process concerns: “first, that regulated parties should know

what is required of them so that they may act accordingly; second, precision and

guidance are necessary so that those enforcing the law do not act in an arbitrary or

discriminatory way.” Id. Cf. Erwin Chemerinksy, Constitutional Law: Principles and

Policies §11.2.2 (2d ed. 2002) (“Ambiguity is inherent in language, and all laws will have

some vagueness.”). Section 5, by its terms and as-applied, satisfies those concerns.

Section 5, on its face, mandates that before a covered jurisdiction can implement

any voting change, it must obtain an administrative or judicial preclearance determination

that the proposed change “neither has the purpose nor will have the effect of denying or

abridging the right to vote on account of race or color” or membership in a language


45

minority group. 42 U.S.C. 1973c. Over 40 years ago, the Supreme Court interpreted

Section 5’s effects prong to prohibit those voting changes that would worsen the position

of racial minorities with respect to their “effective exercise of the electoral franchise,”

Beer, 425 U.S. at 140-142, and the Attorney General has adopted that same standard in

regulations governing his administration of Section 5, see 28 C.F.R. 51.52(a) and

51.54(b). Cf. Lopez, 525 U.S. at 281 (holding those regulations are entitled to

“substantial deference”); Georgia, 411 U.S. at 536 (stating the issuance of such

regulations shows the Attorney General has not interpreted Section 5 to grant him

“unfettered discretion as to procedures, standards, and administration in this sensitive

area”).17 Accordingly, this Court has stated that the effects prong prohibits voting

changes that disproportionately and materially burden racial minorities as compared to

preexisting state or local law or practice. See Texas, 2012 WL 3743676, at *13; see also

South Carolina v. Holder, 2012 WL 4814094, at *7, *19 n.13; Florida v. United States,

No. 11cv1428, 2012 WL 3538298, at *9 (D.D.C. Aug. 16, 2012) (three-judge court).

Because Section 5, by its terms and as interpreted by the Attorney General and the

17 The Section 5 regulations explain, inter alia, what types of changes must be submitted; the factors the Attorney General considers relevant and the standards by which the Attorney General will be guided in making administrative determinations under Section 5 and in defending judicial preclearance suits; the allocation of the burden of proof to covered jurisdictions; and the form, timing, and required contents of Section 5 submissions. See 28 C.F.R. Pt. 51; 76 Fed. Reg. at 7470; Def. SMF ¶¶ 30-37. Although the Attorney General’s Section 5 determination is not judicially reviewable, a covered jurisdiction may seek judicial preclearance de novo and take a direct appeal to the Supreme Court if the requested relief is denied. See 42 U.S.C. 1973c(a). As such, Section 5 does not operate akin to a “governor’s veto.” Pl. Mem. 35.


46

Supreme Court, clearly requires covered jurisdictions to submit all voting changes for

preclearance and to prove, under well-established standards, that those changes lack a

discriminatory purpose or effect, it provides fair notice of what is required of covered

jurisdictions and therefore complies with due process.18

The fact that not all jurisdictions will always know whether every voting change

will satisfy the preclearance standard does not make the effects prong unconstitutionally

vague. Cf. Pl. Mem. 29. The retrogression standard has to be applied to the particular

facts of each case. See 28 C.F.R. 51.54 and 51.57; see also Georgia, 411 U.S. at 531

(Section 5 is concerned with “the reality of changed practices as they affect [minority]

voters”); 1975 House Report 60 (Section 5 requires “determining * * * whether the

ability of minority groups to participate in the political process * * * is augmented,

diminished, or not affected by the change affecting voting in view of the political,

18 Nor does allowing parties to intervene in judicial preclearance suits impose “an unconstitutional penalty on a State’s right to seek judicial redress,” in violation of due process. Compare Pl. Mem. 36 with Thunder Basin v. Reich, 510 U.S. 200, 217-218 (1994) (holding that assessment of daily penalties, subject to judicial review, was not sufficiently onerous or coercive to foreclose access to the courts). First, a relatively small number of jurisdictions even seek judicial preclearance, and an even smaller number of those actions included intervenor-defendants. Def. SMF ¶¶ 38-39. Second, for those jurisdictions that seek judicial relief instead of, simultaneous to, or after making a more cost-effective and expeditious administrative submission and end up facing numerous intervening parties, a court can effectively reduce the litigation burden, as in this case, by ordering the parties to avoid duplication of efforts, combining aspects of discovery, and consolidating briefing and argument. Also, even where intervenors seek attorney’s fees after a denial of preclearance, such an award is in the discretion of the court and must be limited to reasonable and non-duplicative fees. 42 U.S.C. 1973l(e). The Supreme Court has previously rejected the argument that intervention in Section 5 cases places an unfair burden on jurisdictions. See Ashcroft, 539 U.S. at 476.


47

sociological, economic, and psychological circumstances within th[at] community”). If a

voting change is denied preclearance, as was SB 14 in this case, it is because the facts

failed to show that the proposed change “would [not] lead to a retrogression in the

position of racial minorities with respect to their effective exercise of the electoral

franchise,” Beer, 425 U.S. at 141, not because the standard changes from case to case or

on account of the submitting jurisdiction.

Texas argues that the effects prong of Section 5 imposes the impossible burden of

proving the future effects of a law that has not been implemented. Pl. Mem. 29. But the

Supreme Court has long interpreted the retrogression standard to require covered

jurisdictions to demonstrate that their proposed voting changes will not worsen the

position of minority voters relative to the status quo. See Beer, 425 U.S. at 140-142.

Any covered jurisdiction enacting a voter ID requirement could easily foresee the Section

5 inquiry in this context. In anticipation of meeting its evidentiary burden, such a

jurisdiction likely would consider: (1) which potential voters would not have the newly

required form of ID; (2) who in that group would have to obtain acceptable ID (instead

of, for example, invoking a disability or religious exception to the requirement); (3) how

difficult it would be for those individuals to obtain an ID (because of underlying costs,

transportation issues, limited accessibility of government offices, etc.); (4) whether those

difficulties would more likely fall on minority voters; and (5) whether anything in the law

offsets those burdens. Indeed, some of Texas’s own legislators proposed amendments to

SB 14 in response to these very concerns. See Texas, 2012 WL 3743676, at *33. How


48

much a jurisdiction ultimately engages with those considerations in an effort to satisfy its

Section 5 burden is its choice.

Although the Attorney General or a district court may find a particular

consideration dispositive in a given case, depending on the available evidence, evaluating

the relevant considerations in this light does not amount to a shifting preclearance

standard. Indeed, other covered jurisdictions have been able to show that their voter ID

laws will not have a retrogressive effect. See, e.g. South Carolina v. Holder, 2012 WL

4814094, at *8-9, *15-17 (preclearing South Carolina’s photo ID law and noting that

Georgia and New Hampshire likewise obtained preclearance for their photo ID laws);

Def. SMF ¶ 28 (interposing no objection to voter ID laws enacted by Arizona, Georgia,

Louisiana, Michigan, New Hampshire, and Virginia). And even where a covered

jurisdiction cannot disprove racial disparities in ID possession based on the evidence it

possesses, it still can secure preclearance by demonstrating that the burdens imposed by

its law are not material, or have been sufficiently ameliorated, and that the law therefore

will lack a retrogressive effect. See South Carolina v. Holder, 2012 WL 4814094, at *8-

9, *15-17 (noting preclearance has been obtained where voters could easily obtain an ID

or cast an equally effective ballot through other means); Texas, 2012 WL 3743676, at *10

(“some voter ID laws impose only ‘minor inconvenience’ and present little threat to the

‘effective exercise of the electoral franchise’—and would thus be easily precleared”); id.

at *13 (explaining that a law must impose both a material and disproportionate burden on


49

minority voters for it to have a prohibited effect).19 Section 5, however, properly blocks

electoral changes by jurisdictions with a long history and ongoing pattern of voting

discrimination where those jurisdictions discount, disregard, or ignore a proposed voting

practice’s potential discriminatory effect on minority voters and therefore fail to satisfy

the well-established preclearance standard.20

19 This Court did not act improperly by failing to “provid[e] [Texas] any assurance that [it] would have faced a non-impossible burden of proof had it adopted any [specific] amendments” to SB 14. Pl. Mem. 30-31. Article III of the Constitution limits federal courts to adjudicating “only actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). Adopting Texas’s position would have required this Court to have issued an advisory opinion in violation of Article III. 20 If this Court were to strike down any portion of Section 5, the remainder of the Act would easily survive. See 42 U.S.C. 1973p; see also Free Enter. Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161-3162 (2010).


50

CONCLUSION

This Court should grant the Attorney General’s motion and deny Texas’s motion.

Date: October 22, 2012

Respectfully submitted,

RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia /s/ Erin H. Flynn T. CHRISTIAN HERREN, JR. JESSICA DUNSAY SILVER MEREDITH BELL-PLATTS



United States Department of Justice 950 Pennsylvania Ave. NW Washington, D.C. 20530 (800) 253-3931




) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


THE ATTORNEY GENERAL’S STATEMENT OF

UNCONTESTED MATERIAL FACTS


2

Pursuant to Local Civil Rule 7(h)(1), Attorney General Eric J. Holder, Jr., submits

the following statement of material facts as to which the Attorney General contends that

there is no genuine issue.

1. According to the 2010 Census, the State of Texas has a total population of

25,145,561 persons, including 11,397,345 non-Hispanic white persons (45.3%),

9,460,921 Hispanic persons (37.6%), 2,975,739 non-Hispanic black persons

(11.8%), and 1,027,956 non-Hispanic Asian persons. Request for Judicial Notice

¶ 6 (June 21, 2012) (Doc. 219); see also Minute Order (July 3, 2012) (granting

request for judicial notice).

Background Information on the State of Texas

2. According to the 2010 Census, the State of Texas has a voting-age population of

18,279,737, including 9,074,684 non-Hispanic white persons (49.6%), 6,143,144

Hispanic persons (33.6%), 2,102,474 non-Hispanic black persons (11.5%), and

758,636 non-Hispanic Asian persons (4.2%). Request for Judicial Notice ¶ 7.

3. According to the 2008-2010 American Community Survey (“ACS”), the State of

Texas has a citizen voting-age population of 15,564,014 persons, including

8,871,710 non-Hispanic white persons (57.0%), 4,032,800 Hispanic persons

(25.9%), 2,006,756 non-Hispanic black persons (12.9%), and 449,648 non-

Hispanic Asian persons (2.9%). Request for Judicial Notice ¶ 8.

4. Texas’s population grew by approximately 4.3 million in the past decade, an

increase of 20.6%. Approximately 89% of this growth was from non-Anglo


3

minorities: Hispanics comprise 65% of the increase, black persons 13.4%, and

Asian-Americans 10.1%. Texas v. United States, ___ F. Supp. 2d ___, No. 1:11-

cv-1303, 2012 WL 3671924, at *17 (D.D.C. Aug. 28, 2012).

Figure 1: Texas Population 1990-2010 by Race

5. According to the 2000 Census, the State of Texas had a total population of



(11.5%), and 594,932 non-Hispanic Asian persons (2.8%). Request for Judicial

Notice ¶ 3.


4

6. According to the 2000 Census, the State of Texas had a voting-age population of



(11.0%), and 437,215 non-Hispanic Asian persons (2.9%). Request for Judicial

Notice ¶ 4.

7. According to the 2000 Census, Texas had a citizen voting-age population of



(12.0%), and 225,374 non-Hispanic Asian persons (1.7%).

8. According to the 1990 Census, the State of Texas had a total population of



(11.6%), and 303, 825 non-Hispanic Asian persons (1.8%). Request for Judicial

Notice ¶ 1.

9. According to the 1990 Census, the State of Texas had a voting-age population of



(11.0%), and 213, 294 non-Hispanic Asian persons (1.8%). Request for Judicial

Notice ¶ 2.

10. In Texas, the poor are disproportionately racial minorities. Texas v. Holder, ___

F. Supp. 2d ___, No. 1:12-cv-128, 2012 WL 3743676, at * 28 (D.D.C. Aug. 30,


5

2012).

11. According to the 2008-2010 ACS, the State of Texas has a poverty rate of 17.0%.

Non-Hispanic white persons have a poverty rate of 8.8%; Hispanic persons,

25.8%; non-Hispanic black persons, 23.3%; and non-Hispanic Asian persons,

11.9%. Request for Judicial Notice ¶ 9.

12. According to the 2008-2010 ACS, 19.7% of Texans 25 years of age and older lack

a high school diploma or equivalent. 8.3% of Non-Hispanic white persons lack a

high school diploma, whereas 41.5% of Hispanic persons, 14.6% of non-Hispanic

black persons, and 13.0% of non-Hispanic Asian persons lack a high school

diploma. Request for Judicial Notice ¶ 10.

13. According to the 2008-2010 ACS, the median household income in the State of

Texas is $49,585. The median income is $60,856 for non-Hispanic white persons,

$36,957 for Hispanic persons, $36,731 for non-Hispanic black persons, and

$64,245 for non-Hispanic Asian persons. Request for Judicial Notice ¶ 11.

14. According to the 2008-2010 ACS, the State of Texas had an unemployment rate of

7.4%. The unemployment rate was 5.8% for non-Hispanic white persons, 8.2% for

Hispanic persons, 11.9%, for non-Hispanic black persons, and 6.3%, for non-

Hispanic Asian persons. Request for Judicial Notice ¶ 12.

15. According to the 2008-2010 ACS, 6.0% of the total persons in the State of Texas

have no vehicles available to them. 3.8% of Non-Hispanic white persons do not

have a vehicle available compared to 7.3% of Hispanic persons, 13.0% of non-


6

Hispanic black persons, and 4.6% of non-Hispanic Asian persons. Request for

Judicial Notice ¶ 13.

16. According to the 2008-2010 ACS, 64.2% of the total persons in the State of Texas

reside in an owner-occupied housing unit. 72.2% of non-Hispanic white persons

reside in an owner-occupied unit as do 57.7% of Hispanic persons, 45.2% of non-

Hispanic black persons, and 61.9% of non-Hispanic Asian persons. Request for

Judicial Notice ¶ 14.

17. According to the 2008-2010 ACS, 11.2% of all households in the State of Texas

receive Supplemental Nutrition Assistance Program (“SNAP”) benefits. 5.3% of

non-Hispanic white households receive SNAP benefits as do 19.4% of Hispanic

households, 19.5% of non-Hispanic black households, and 5.5% of non-Hispanic

Asian households. Request for Judicial Notice ¶ 15.

Plaintiff’s Section 5 History and Voting Rights Litigation

18. Texas has a long, well-documented history of official discrimination affecting

voting that has been remedied only by federal intervention. See Texas v. United

States, 2012 WL 3671924, at *18-21 (redistricting); White v. Regester, 412 U.S.

755, 768 (1973) (poll tax); Terry v. Adams, 345 U.S. 461 (1953) (private primary);

Smith v. Allwright, 321 U.S. 649 (1944) (white primary); Nixon v. Herndon, 273

U.S. 536 (1927) (exclusion of minorities).

19. As a result of the 1975 Amendments to the Voting Rights Act, Texas became

covered under Section 4 of the Act, 42 U.S.C. 1973b(b). As a consequence, Texas


7

became subject to the requirements of Section 5 of the Voting Rights Act, 42

U.S.C. 1973c.

20. The State of Texas is also subject to the Spanish language election requirements of

Section 4(f)(4) of the Voting Rights Act, 42 U.S.C. 1973b(f)(4), and Section 203

of the Act, 42 U.S.C. 1973aa-1a. In addition, 89 of the 254 counties in Texas are

individually covered by Section 203 for Spanish language election requirements,

and three counties are covered for Asian or Native American election

requirements. See 76 Fed. Reg. 63,602 (Oct. 13, 2011). The requirements of

Section 4(f)(4) apply to every county in Texas, cf. United States v. Bd. of

Comm’rs, 435 U.S. 110 (1978), whereas the requirements of Section 203 do not

apply to those counties that are not independently covered by that provision. See

76 Fed. Reg. 63,602.

21. At least 254 counties,1,209 municipalities, 1,117 school districts, 2,902 special

purpose districts, 483 state and local political parties, and 89 state courts located in

Texas have submitted voting changes for administrative review under Section 5.

Declaration of Robert S. Berman (“Berman Decl.”) (Ex. 1) at ¶ 4

22. Since Texas jurisdictions were first required to comply with Section 5, the

Department of Justice has received at least 56,537 submissions for review

involving the State of Texas or jurisdictions located in Texas. Berman Decl. ¶ 4.

As with all Section 5 submissions, the Attorney General reviewed these changes to

ensure that they had neither the purpose nor would have the effect of


8

discriminating on the basis of race, color, or membership in a language minority

group. Berman Decl. ¶ 4.

23. The Attorney General has interposed 138 objections to changes affecting voting in

the State of Texas. Berman Decl. ¶ 5.

24. The Attorney General has interposed 12 objections to statewide changes affecting

voting in Texas. Berman Decl. ¶ 5.

25. The State of Texas had voter identification requirements that were in force or

effect on November 1, 1972, the trigger date for coverage under Section 4. Prior

to the passage of Senate Bill 14, Texas had submitted two substantive changes to

statewide voter identification requirements. In 1997, the State submitted House

Bill 331 (1997), which eliminated an affidavit procedure for voters lacking their

registration certificate and required that such voters provide either an affidavit

signed by an election worker attesting to the voter’s identity or one of numerous

forms of photographic and non-photographic identification. [Submission Number

1997-2145]. In 2003, Texas submitted House Bill 1549 (2003), which eliminated

the procedure under which an election worker could identify a voter and both

added to and subtracted from the list of permissible forms of identification.

[Submission Number 2003-3619]. The Attorney General did not interpose an

objection to either submission. Berman Decl. ¶ 21.1

1 The State has submitted three additional voting changes concerning voter identification. In 1985, the Texas Legislature recodified the Texas Election Code and—in so doing—made non-substantive amendments to voter identification requirements. (House Bill 616


9

26. On July 25, 2011, Texas submitted Senate Bill 14 to the Attorney General for

administrative review under Section 5. Senate Bill 14 amended the Texas Election

Code and the Texas Transportation Code to require voters to present one of

several enumerated forms of photographic identification to qualify to vote in

person on Election Day. The submission was assigned File No. 2011-2775. The

Attorney General requested additional information on September 23, 2011 and

followed up on that request on January 9, 2012. Texas responded to the request on

January 12, 2012 and continued to provide information through February 17,

2012. Berman Decl. ¶ 22.

27. On March 12, 2012, the Attorney General interposed an objection to Sections 9

and 14 of Senate Bill 14 and did not object to the remainder of the Bill. Berman

Decl. ¶ 22.

28. The Attorney General has declined to interpose objections to voter identification statutes

including, for example, those enacted by the States of Arizona, Georgia, Louisiana,

Michigan, New Hampshire, and Virginia. Berman Decl. ¶¶ 14-20.

Preclearance of Voter Identification Statutes

(1985) [Submission Number 1985-0898]. In 1995, the State passed legislation implementing the National Voter Registration Act of 1993, 42 U.S.C. 1973gg to 1973gg-10. Although the Attorney General interposed an objection to portions of the legislation, she did not object to the non-substantive amendment to the State’s voter identification requirements. (House Bill 127 (1995) [Submission Number 1995-2017]. Finally, in 1997, Texas submitted House Bill 330 (1997), which contained changes identical to those that had already been precleared during review of House Bill 331. [Submission Number 1997-2396]. As a result, the Attorney General made no determination concerning those portions of House Bill 330 that related to voter identification requirements. Berman Decl. ¶ 19.


10

29. On September 19, 2011, the Department consented to the entry of the relief

requested by the State of Texas with regard to the 2011 redistricting plans for the

Texas Senate and the State Board of Education. See Answer, Texas v. United

States, No. 1:11-cv-1303 (D.D.C. Sept. 19, 2011) (Doc. 45). On August 28, 2012,

this Court denied preclearance to the 2011 redistricting plans for the Texas

delegation to the U.S. Congress, the Texas House, and the Texas Senate. See

Texas v. United States, ___ F. Supp. 2d ___, No. 1:11-cv-1303, 2012 WL 3671924

(D.D.C. Aug. 28, 2012).

30. The Attorney General endeavors to comply with Congress’s intent that the

administrative review of voting changes submitted pursuant to Section 5 be an

efficient, convenient, and affordable alternative to seeking a declaratory judgment

from a three-judge court in the United States District Court for the District of

Columbia. Berman Decl. ¶ 6.

The Administrative Review Process

31. To that end, the Attorney General has a long-standing policy of providing

information to covered jurisdictions concerning the administrative review process

by publishing the Procedures for the Administration of Section 5 of the Voting

Rights Act of 1965 in the Code of Federal Regulations. See 28 C.F.R. 51.1-.67.

These procedures were first promulgated in 1971, see 36 Fed. Reg. 18,186 (Sept.

10, 1971), and are revised when necessary, see, e.g., 75 Fed. Reg. 33,205 (June 11,

2010); see also Berman Decl. ¶ 7.


11

32. The Attorney General has created a website that provides information concerning

the Section 5 process, which is located at http://www.justice.gov/crt/about/vot/.

Berman Decl. ¶ 8.

33. The Attorney General provides a toll-free telephone number for submitting

officials to contact Department of Justice staff members, who are available to

guide those officials through the submission process. Berman Decl. ¶ 9.

34. The Attorney General’s procedures have always provided covered jurisdictions

with the option to request expedited consideration of voting changes. 28 C.F.R.

51.34. The Attorney General makes every effort to accommodate covered states

and local jurisdictions that experience emergencies prior to elections that require

expedited consideration of voting changes. Situations calling for expedited

consideration include events such as fires or natural disasters that affect which

polling places can be used in an election, or pre-election litigation that threatens to

stop the conduct of an election. In appropriate circumstances, the Attorney

General has made determinations within 24 hours or less of receipt of a

submission. Berman Decl. ¶ 10.

35. The Attorney General also allows covered jurisdictions to send Section 5

submissions by overnight delivery. Berman Decl. ¶ 11.

36. For some years, the Attorney General has allowed jurisdictions to make

submissions and submit additional information on pending Section 5 submissions

by telefacsimile. Berman Decl. ¶ 12.


12

37. The Attorney General allows jurisdictions to submit additional information on

pending Section 5 submissions by electronic mail. Berman Decl. ¶ 13.

Declaratory Judgment Actions Under Section 5 in the United States District Court for the District of Columbia

38. Between August 1984 and July 2006, 41 jurisdictions filed declaratory judgment

actions under Section 5 in this Court. The Court entered an order denying or

granting the requested relief in ten actions. Many of these actions sought a

determination on more than one voting change and the Court’s resolution may

have addressed only a subset of those changes. In one of these actions the United

States consented to judgment on some or all the claims. With regard to the

outcome in the remaining actions:

a. In 22 instances, the jurisdiction voluntarily dismissed the action prior to

trial; and

b. In nine instances, the jurisdiction voluntarily dismissed the action after

making an administrative submission of a subsequently-enacted change to

which the Attorney General did not interpose an objection.

In 15 of the actions indentified in this paragraph, the Court permitted one or more

parties to intervene as defendants; in four actions, parties intervened as either

plaintiffs or defendants; and in two cases, parties were unsuccessful in gaining

intervention. Berman Decl. ¶ 24.

39. Since July 2006, 23 jurisdictions have filed declaratory judgment actions under

Section 5 in this Court. The Court entered an order denying or granting the


13

requested relief on one or more claims in five actions, including two in which the

United States consented to judgment on some or all the claims. The Court, for a

variety of reasons, did not reach a judicial resolution in the remaining 18.

a. In 16 actions, the jurisdiction made a parallel administrative submission

of the change(s) to the Attorney General and dismissed the some or all

claims in that action after being informed that no objection would be

interposed; in two of these actions, the jurisdiction responded to the

Attorney General’s objection to one or more changes at issue by submitting

a subsequently-enacted change to the Attorney General to which no

objection was interposed, after which the action was dismissed in its

entirety;

b. In one instance, the jurisdiction voluntarily dismissed the action and

c. In one instance, the jurisdiction voluntarily dismissed the action after

making an administrative submission of a subsequently-enacted change to

which the Attorney General did not interpose an objection.

In five of the actions identified in this paragraph, the Court permitted one or more

parties to intervene as defendants; in two instances, parties were unsuccessful in

gaining intervention. Berman Decl. ¶ 25.

40. Jurisdictions covered by Section 4 of the Act may seek to terminate their

requirement to comply with Section 5 by bringing a “bailout” action, a declaratory

Termination of Coverage Under the Special Provisions of the Voting Rights Act


14

judgment action in the United States District Court for the District of Columbia.

See 42 U.S.C. 1973b(a). A jurisdiction that has “bailed out” is relieved of the

responsibility of complying with Section 5 and Section 4(f)(4) but must continue

to conform to requirements set by other provisions of the Voting Rights Act,

including Section 203. 42 U.S.C. 1973b(a)(1); see also Berman Decl. ¶ 26.

41. As originally enacted, the “bailout” mechanism was available only to covered

States and to jurisdictions, such as counties, “with respect to which such

[coverage] determinations have been made as a separate unit.” Voting Rights Act

of 1965, Pub. L. No. 89-110, 4(a), 79 Stat. 437, 438 (1965).

42. To terminate Section 5 coverage, a jurisdiction was required to prove it had not

used a prohibited test or device “for the purpose or with the effect of denying or

abridging the right to vote on account of race or color” during the previous five

years. Id.

43. In 1982, Congress amended the bailout provision of the Voting Rights Act,

substantially expanding the opportunity for covered jurisdictions to terminate

coverage, effective August 5, 1984. Specifically, Congress added a third category

of eligible jurisdictions, permitting “any political subdivision of [a covered] State”

to bail out, even if the coverage determination had not been made “with respect to

such subdivision as a separate unit.” Voting Rights Act Amendments of 1982,

Pub. L. No. 97-205, § 2(b)(2), 96 Stat. 131, 131 (1982); see also 42 U.S.C.

1973b(a) (current language).


15

44. The 1982 Reauthorization also changed the substantive requirements for bailout.

Under the revised bailout provision—which remains in effect—jurisdictions must

demonstrate that they have fully complied with Section 5 and other voting rights

provisions during the previous ten years. Voting Rights Act Amendments of 1982

§ 2(b)(2), 96 Stat. at 131; see also Berman Decl. ¶ 27; 42 U.S.C. 1973b(a) (current

language).

45. To demonstrate compliance with the Voting Rights Act, a jurisdiction must

demonstrate that during the ten-year period preceding the filing of a declaratory

judgment action seeking a “bailout”: (1) it has not used any test or device with the

purpose or effect of denying or abridging the right to vote on account of race or

color; (2) no final judgment of any court of the United States has determined that

denials or abridgements of the right to vote on account of race or color have

occurred anywhere in the jurisdiction, and no consent decree, settlement, or

agreement has been entered into that results in the abandonment of such a practice;

(3) no Federal examiners or observers under the Voting Rights Act have been

assigned to the jurisdiction; (4) the jurisdiction has complied with Section 5 of the

Voting Rights Act, including the preclearance of all changes covered by Section 5

prior to implementation and the repeal of all covered changes to which the

Attorney General has successfully objected or for which the District Court for the

District of Columbia has denied a declaratory judgment; and (5) the Attorney

General has not interposed any objection not subsequently overturned by the final


16

judgment of a court, no Section 5 declaratory judgment has been denied, and no

such submissions or declaratory judgment actions are pending. 42 U.S.C.

1973b(a)(1)(A)-(E).

46. In addition, a jurisdiction seeking bailout must demonstrate the steps it has taken

to encourage minority political participation and to remove structural barriers to

minority electoral influence by showing the following: (1) the elimination of

voting procedures and election methods that inhibit or dilute equal access to the

electoral process; (2) constructive efforts to eliminate intimidation and harassment

of persons exercising rights protected under the Voting Rights Act; and (3) other

constructive efforts, such as convenient registration and voting for every person of

voting age and the appointment of minority persons as election officials

throughout the jurisdiction and at all stages of the election and registration

process. 42 U.S.C. 1973b(a)(l )(F)(i)-(iii).

47. To assist the court in determining whether to issue a declaratory judgment, the

jurisdiction also must present evidence of minority voting participation, including

the levels of minority group registration and voting, changes in those levels over

time, and disparities between minority-group and nonminority group participation.

42 U.S.C. 1973b(a)(2).

48. The jurisdiction must demonstrate that during the ten years preceding judgment, it

has not violated any provision of the Constitution or federal, state, or local laws

governing voting discrimination, unless it shows that such violations were trivial,


17

promptly corrected, and not repeated. 42 U.S.C. 1973b(a)(3).

49. The jurisdiction must also publicize its intent to commence a declaratory judgment

action and any proposed settlement of the action. 42 U.S.C. 1973b(a)(4).

50. If the jurisdiction shows “objective and compelling evidence” that it has satisfied

the foregoing requirements, as confirmed by the Department’s independent

investigation, the Attorney General is authorized to consent to entry of a judgment

granting an exemption from coverage under Section 5 of the Voting Rights Act. 42

U.S.C. 1973b(a)(9).

51. In Northwest Austin Municipal Utility District Number One v. Holder, the

Supreme Court adopted a still “broader reading of the bailout provision,” which

permits covered subjurisdictions, rather than covered counties and states

exclusively, to petition for bailout from Section 4 coverage. 557 U.S. 193, 207

(2009); see also Berman Decl. ¶ 28.

52. If a jurisdiction requests termination of Section 4 coverage, the Attorney General

conducts an independent investigation into whether the jurisdiction meets the

statutory requirements. Berman Decl. ¶ 29.

53. The Attorney General’s independent investigations involve interviewing

community members, reviewing electoral behavior within the jurisdiction, and

researching whether there are any unsubmitted voting changes, including

reviewing a jurisdiction’s minutes for the last ten years to see if the jurisdiction

has implemented any changes affecting voting that have not received the requisite


18

Section 5 determination. Berman Decl. ¶ 30.

54. Overall, since 1965, there have been 62 bailout cases filed under Section 4(a) in

the D.C. District Court. Berman Decl. ¶ 31. A chronological listing of all actions

seeking to terminate coverage under Section 4(a) is appended at Attachment C.

The results of these cases are described in greater detail below. A listing of the

currently bailed out jurisdictions also appears on the Voting Section’s website at

http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout.

55. Since 1965, 70 of the approximately 943 county-level jurisdictions that were

originally covered by Section 4—i.e., those that conduct voter registration—have

successfully terminated that coverage and remain bailed out since 1965, along

with hundreds of subjurisdictions within their borders. One state and several other

jurisdictions also successfully bailed out but were later re-covered by new

coverage determinations or new court findings. Berman Decl. ¶ 32.

56. Prior the effective date of the new statutory bailout standard in 1984, there were

23 bailout actions filed under Section 4. The United States consented to and the

Court has granted bailout in 15 cases. Of the remaining eight actions, the court

denied three requests after the Attorney General opposed them, the requesting

jurisdiction voluntarily dismissed four cases after the Attorney General declined to

consent to a bailout, and the requesting jurisdiction stipulated to a dismissal in one

case in the wake of an unfavorable court decision. Berman Decl. ¶ 33.

57. Between the August 1984 effective date of the new bailout standard enacted by


19

Congress in 1982 and the present, this Court has granted bailout in 36 cases, to 30

county-level jurisdictions (with 154 included subjurisdictions), and 6 separately

bailed out sub-county jurisdictions (for a total of 190 jurisdictions). Berman

Decl. ¶ 34. These bailouts are described in greater detail below.

58. Between the August 1984 effective date of the new bailout standard enacted by

Congress in 1982 and the Supreme Court’s decision in Northwest Austin in June

2009, the Attorney General had consented to – and this Court had granted –

requests for bailout in 18 cases, resulting in 18 county level jurisdictions (with 51

included subjurisdictions) receiving bailouts from Section 4 coverage (for a total

of 69 jurisdictions). Berman Decl. ¶ 35.2

59. Since the Supreme Court’s decision in Northwest Austin in June 2009, the

Attorney General has consented to—and this Court has granted—requests for

bailout in 18 cases, resulting in 12 county-level jurisdictions (with 103 included

2 In Northwest Austin, the Supreme Court observed that 17 jurisdictions had bailed out since the August 5, 1984, effective date of the 1982 amendments. See 557 U.S. at 211 (citing Br. for Jurisdictions that Have Bailed Out as Amici Curiae, at app. 3). This statement is inaccurate for two reasons. First, the source upon which the Court relied for that number failed to list the bailout obtained by Pulaski County, Virginia. See Br. for Jurisdictions That Have Bailed Out as Amici Curiae, at app. 3, Nw. Austin Mun. Utility Dist. No. 1 v. Holder, No. 08-322 (Mar. 25, 2009); see also Consent Judgment and Decree, Pulaski County, Virginia v. Gonzales, 1:05-cv-1265 (Sept. 27, 2005 D.D.C) (Doc. 8). Second, it equates the number of bailout cases with the number of covered jurisdictions. However, when a county-level jurisdiction bails out, coverage is terminated for all the subjurisdictions within the county. Thus a single bailout case often results in termination of coverage for several jurisdictions. Many subjurisdictions within the 17 county-level jurisdictions noted by the Supreme Court had also been removed from Section 4 coverage. See U.S. Dep’t of Justice, Section 4 of the Voting Rights Act, at www.justice.gov/crt/about/vot/misc/sec_4.php.


20

subjurisdictions) and 6 smaller jurisdictions that filed separate bailout cases,

receiving bailouts from Section 4 coverage (for a total of 121 jurisdictions).

Berman Decl. ¶ 36.

a. The 12 county level jurisdictions that have bailed out include: the City of

Manassas Park, Virginia; Rappahannock County, Virginia (including two

subjurisdictions); Bedford County, Virginia (including one subjurisdiction);

the City of Bedford, Virginia; Culpeper County, Virginia (including two

subjurisdictions); James City County, Virginia (including one

subjurisdiction); the City of Williamsburg, Virginia; King George County,

Virginia (including one subjurisdiction); Prince William County, Virginia

(including five subjurisdictions); Wythe County, Virginia (including three

subjurisdictions); Grayson County, Virginia (including four

subjurisdictions); and Merced County, California (including some 84

subjurisdictions). Berman Decl. ¶ 36b.

b. The 6 sub-county jurisdictions bailed out in their own separate bailout

actions include: Northwest Austin Municipal Utility District, Texas; the

City of Kings Mountain, North Carolina; the City of Sandy Springs,

Georgia; Jefferson County Drainage District Number Seven, Texas; Alta

Irrigation District, California; and the City of Pinson, Alabama.

Berman Decl. ¶ 36a.

60. Since the Supreme Court’s decision in Northwest Austin, jurisdictions in Alabama,


21

California, Georgia, and Texas have bailed out for the first time, and a jurisdiction

in North Carolina has bailed out for the first time since 1967. Moreover, earlier

this year this Court granted the largest bailouts, at least since the 1982 bailout

standard went into effect in August 1984, both in terms of population—Prince

William County, Virginia—and in terms of the number of included

subjurisdictions —Merced County, California. Berman Decl. ¶ 39.

61. The Attorney General has informed Carroll County, Virginia, and Craig

County, Virginia, that he will consent to their pending requests for bailout.

Berman Decl. ¶ 37. The Browns Valley Irrigation District in Yuba County,

California, has also filed a declaratory judgment action in this Court seeking to

terminate coverage under Section 4, but the jurisdiction has not yet effectuated

service in that matter. Berman Decl. ¶ 38.

62. Since 1975, at least 18 jurisdictions have been required pursuant to Section 3(c) of

the Voting Rights Act, 42 U.S.C. 1973a (c), to seek review of changes affecting

voting before they may be implemented (“bail in”). Berman Decl. ¶ 40.

Section 3(c) of the Voting Rights Act

63. Among the extensive evidence Congress considered in reauthorizing Section 5 of

the Voting Rights were two studies: (1) Ellen Katz et. al., Documenting

Discrimination in Voting: Judicial Findings under Section 2 of the Voting Rights

Act Since 1982 (2005), reprinted in To Examine Impact and Effectiveness of the

Clarification of the Legislative Record


22

Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H.

Comm. on the Judiciary, 109th Cong. 16, 964-1124 (2005) [hereinafter

Documenting Discrimination in Voting]; and (2) Nat’l Comm’n on the Voting

Rights Act, Protecting Minority Voters: The Voting Rights Act at Work, 1982-

2005 (2006), reprinted in Voting Rights Act: Evidence of Continuing Need:

Hearing Before the Subcomm. on the Constitution of the S. Comm. on the

Judiciary, 109th Cong. 104-289 (2006) [hereinafter Protecting Minority Voters].

The study by Professor Katz and law students working under her direction at the

University of Michigan assembled data regarding all reported decisions in Section

2 litigation from 1982 to 2005. Among other evidence provided in its report, the

staff of the National Commission gathered data regarding Section 2 litigation other

than in reported decisions. See Declaration of Dr. Peyton McCrary ¶¶ 8-10

(“McCrary Decl.”) (Ex. 2).

64. Even though more than three-fourths of the nation’s population lives in non-

covered jurisdictions, only 50 of the 114 reported decisions favorable for minority

voters that were before Congress—approximately 44%—came from these non-

covered jurisdictions. Documenting Discrimination in Voting, supra, 974-75;

McCrary Decl. ¶ 21.

65. Dr. McCrary has also examined the history of Section 2 litigation from 1982 to

2006, including the settlement of Section 2 cases in jurisdictions not covered by

Section 5, as outlined in his declaration. See McCrary Decl. ¶¶ 8-26.


23

66. Dr. McCrary identified a total of 99 Section 2 settlements in non-covered

jurisdictions. Twenty-four of these cases were in Arkansas alone; thirteen were in

California; eleven were in the non-covered counties of Florida; thirteen in the non-

covered counties of North Carolina; and the rest scattered around the country.

Evidence concerning 62 of these 99 settlements (63%) was on the record

considered by Congress in adopting the 2006 Reauthorization Act. See Voting

Rights Act: Evidence of Continuing Need: Hearing Before the Subcomm. on the

Constitution of the S. Comm. on the Judiciary, 109th Cong. 321-22, 1484-85,

1773-74, 1779, 1782-84,1794-95,1875,1889, 1986, 1999-2000,4014-15,4026-

35,4058-59,4064,4067-68,4072-73, 4080-82,4086,4099,4118-21,4127,4129,4133-

34,4138,4313-25,4348, 4359-60,4373,4384,4391-92,4403-04,4425,4451-

56,4479,4505-06, 4512-14,4552,4564-81,4583,4594,4726,4731-34,4747,5536-

5544 (2006); see also McCrary Decl. ¶ 15.

67. By way of comparison, the report of the National Commission on the Voting

Rights Act found 587 cases under Section 2 that had been resolved favorably to

minority voters in jurisdictions covered by Section 5 of the Voting Rights Act,

even though covered jurisdictions contain less than a quarter of the nation’s

population. McCrary Decl. ¶ 16.

68. Therefore, Dr. McCrary’s analysis found that the vast majority of racially

discriminatory election practices ended by enforcement of Section 2 during the

past quarter century has taken place in jurisdictions covered by Section 5 of the


24

Act. When settlements in covered and noncovered jurisdictions are combined,

there are 686 successful outcomes in cases without reported decisions, of which 86

percent fall within jurisdictions covered by Section 5. McCrary Decl. ¶ 21 & tbl.1.

69. Combining all successful outcomes in both reported and unreported cases shows

that 81 percent of all successful outcomes in Section 2 cases occurred in covered

jurisdictions, which again contain only a quarter of the population of the United

States. McCrary Decl. ¶ 22 & tbl.1.

70. The State of Texas has been the locus of more Section 2 cases with a favorable

outcome to minority plaintiffs than any other state, with seven reported cases and

206 settlements, for a total of 213 cases. McCrary Decl. ¶ 23 & tbl.2. This is over

six times as many cases as any state not covered by Section 5 of the Voting Rights

Act. McCrary Decl. ¶ 24 & tbl.3.

Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia

T. CHRISTIAN HERREN, JR. /s/ Spencer R. Fisher

JESSICA DUNSAY SILVER MEREDITH BELL-PLATTS ERIN H. FLYNN ELIZABETH S. WESTFALL BRUCE I. GEAR JENNIFER L. MARANZANO SPENCER FISHER RISA BERKOWER


25

DANIEL J. FREEMAN Attorneys Voting Section, Civil Rights Division

U.S. Department of Justice 950 Pennsylvania Avenue, N.W.

Date: October 22, 2012 Washington, D.C. 20530


CERTIFICATE OF SERVICE

I hereby certify that on October 22, 2012, I served a true and correct copy of the foregoing via the Court’s ECF system on the following counsel of record:

Jonathan Franklin Mitchell Adam W. Aston Matthew Hamilton Frederick Patrick Kinney Sweeten Office of the Attorney General of Texas [email protected] [email protected] [email protected] [email protected] Adam K. Mortara John M. Hughes Bartlit Beck Herman Palenchar & Scott LLP [email protected] [email protected] Counsel for Plaintiff John Tanner [email protected] Nancy G. Abudu M. Laughlin McDonald Katie O’Connor Arthur B. Spitzer American Civil Liberties Union [email protected] [email protected] [email protected] [email protected] Counsel Texas Legislative Black Caucus Intervenors

Debo P. Adegbile Leah C. Aden Elise C. Boddie Ryan Haygood Dale E. Ho Natasha Korgaonkar NAACP Legal Defense and Education Fund [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Michael Birney de Leeuw Douglas H. Flaum Adam M. Harris Fried, Frank, Harris, Shriver & Jacobson [email protected] [email protected] [email protected] Counsel for Texas League of Young Voters Intervenors


Jon M. Greenbaum Mark A. Posner Lawyers’ Committee for Civil Rights [email protected] [email protected] Ezra David Rosenberg Michelle Hart Yeary Dechert LLP [email protected] [email protected] Robert Stephen Notzon [email protected] Gary L. Bledsoe Law Office of Gary L. Bledsoe and Associates [email protected] Myrna Perez Wendy Robin Weiser Ian Arthur Vandewalker The Brennan Center for Justice [email protected] [email protected] [email protected] Counsel for NAACP Intervenors

Nina Perales Amy Pederson Mexican American Legal Defense & Educational Fund, Inc. [email protected] [email protected] Counsel for Rodriguez Intervenors J. Gerald Hebert [email protected] Chad W. Dunn Brazil & Dunn [email protected] Counsel for Kennie Intervenors

SPENCER R. FISHER /s/ Spencer R. Fisher

Attorney, Voting Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530


Exhibit 1


Attachment A


Attachment B


Attachment C


Attachment D


Exhibit 2




) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


DECLARATION OF DR. PEYTON MCCRARY

Pursuant to 28 U.S.C. 1746, I, Peyton McCrary, make the following declaration:


2

1. My name is Peyton McCrary. I am an historian employed since August, 1990

by the Voting Section, Civil Rights Division, of the Department of Justice. My

responsibilities include the planning, direction, coordination, and performance of

historical research and statistical analysis in connection with litigation. On occasion I am

asked to provide written or courtroom testimony on behalf of the United States.

2. I received B.A. and M.A. degrees from the University of Virginia and obtained

my Ph.D. from Princeton University in 1972. My primary training was in the history of

the United States, with a specialization in the history of the South during the 19th and

20th centuries. For 20 years I taught courses in my specialization at the University of

Minnesota, Vanderbilt University, and the University of South Alabama. In 1998-99 I

took leave from the Department of Justice to serve as the Eugene Lang Professor in the

Department of Political Science, Swarthmore College. For the last six years I have co-

taught a course on voting rights law as an adjunct professor at the George Washington

University Law School.

3. I have published a prize-winning book, Abraham Lincoln and Reconstruction:

The Louisiana Experiment (Princeton, N.J., Princeton University Press, 1978), six law

review articles, six articles in refereed journals, and six chapters in refereed books. Over

the last quarter century my published work has focused on the history of discriminatory

election laws in the South, evidence concerning discriminatory intent or racially polarized

voting presented in the context of voting rights litigation, and the impact of the Voting

Rights Act in the South. For more than three decades I have published numerous reviews

of books in my areas of specialization and served as a scholarly referee for numerous


3

journals and university presses. I continue to publish scholarly work on these topics,

researched and written on my own time, while employed by the Department of Justice. A

detailed record of my professional qualifications is set forth in the attached curriculum

vitae (Attachment A), which I prepared and know to be accurate.

4. My publications most relevant to the issues discussed in this declaration

include: The Constitutional Foundations of the ‘Preclearance’ Process: How Section 5 of

the Voting Rights Act Was Enforced, 1965-2005, in Daniel McCool (ed.), The Most

Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Bloomington,

Indiana University Press, 2012), 34-64; The End of Preclearance as We Knew It: How

the Supreme Court Transformed Section 5 of the Voting Rights Act, 11 Mich. J. Race &

L. 275 (2006) (co-authored with Christopher Seaman and Richard Valelly), reprinted in

Voting Rights Act: Section 5 Preclearance and Standards: Hearings Before the

Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 96-181

(2005); How the Voting Rights Act Works: Implementation of a Civil Rights Policy, 1965-

2005, 57 S.C. L. Rev. 785 (2006); Bringing Equality to Power: How the Federal Courts

Transformed the Electoral Structure of Southern Politics, 1960-1990, 5 U. Pa. J. Const.

L. 665 (2003); Alabama, in Quiet Revolution in the South: The Impact of the Voting

Rights Act, 1965-1990, at 38 (Chandler Davidson and Bernard Grofman eds., 1994) (co-

authored with Jerome A. Gray, Edward Still, and Huey Perry); South Carolina, in Quiet

Revolution in the South, supra, at 397 (co-authored with Orville Vernon Burton, Terence

R. Finnegan, and James W. Loewen); Racially Polarized Voting in the South:

Quantitative Evidence from the Courtroom, 14 Soc. Sci. Hist. 507 (1990); Discriminatory


4

Intent: The Continued Relevance of “Purpose” Evidence in Vote-Dilution Lawsuits, 28

How. L.J. 463 (1985); History in the Courts: The Significance of City of Mobile v.

Bolden, in Minority Vote Dilution 47 (Chandler Davidson ed., 1984).

5. I have presented courtroom testimony as an expert witness in 15 voting rights

cases, for the most part before joining the staff of the Civil Rights Division. In one

instance, however, I testified at trial on behalf of the United States as amicus curiae. In

addition, I have presented sworn written testimony in ten cases, including six since my

employment by the Department of Justice. Prior to my employment with the Civil Rights

Division I was retained as an expert in another 19 cases that settled before trial; 14 of

these were Section 2 lawsuits. I was retained in two other Section 2 cases that settled

after a trial court granted a preliminary injunction. In these cases my testimony has often

dealt with legislative intent in adopting or maintaining at-large elections, numbered place

or majority vote requirements, and methods of appointing local governing bodies, as well

as with the history of racial discrimination in regard to voting. I have testified by

Declaration in three cases during the past four years, Shelby County v. Holder, 811 F.

Supp. 2d 424 (D.D.C. 2011), Laroque v. Holder, 831 F. Supp. 2d 183 (D.D.C. 2011), and

State of Florida v. United States, C.A. No. 1:11-CV-01428 (D.D.C.).

6. The cases in which I testified before joining the Department in 1990 that are

most relevant to this declaration include: Dillard v. Crenshaw County, 640 F. Supp. 1347

(M.D. Ala. 1986); Harris v. Graddick, 593 F. Supp. 128 (M.D. Ala. 1984); Brown v.

Board of School Commissioners of Mobile County, 542 F. Supp. 1078 (S.D. Ala. 1982),

aff’d,706 F.2d 1103 (11th Cir. 1983); and Bolden v. City of Mobile, 542 F. Supp. 1050


5

(S.D. Ala. 1982). In each of these cases, brought under either the Fourteenth Amendment

or Section 2 of the Voting Rights Act, I testified as an expert witness for minority

plaintiffs regarding the intent underlying the adoption or maintenance of election laws.

The trial court decided the two Mobile cases before the 1982 revision of Section 2 of the

Voting Rights Act and thus under the intent standard applied in constitutional challenges

after City of Mobile v. Bolden, 446 U.S. 55 (1980). In addition I testified, both by

Declaration and in trial testimony, in a Section 5 declaratory judgment action, County

Council of Sumter County, South Carolina v. United States, 596 F. Supp. 35 (D.D.C.

1984), regarding the purpose underlying the voting change at issue.

7. I have been asked by attorneys for the Department of Justice to investigate

factual evidence regarding the coverage formula for Section 5 of the Voting Rights Act.

In my investigation I have drawn on my familiarity with the record assembled by House

and Senate committees during the hearings preceding passage of the Fannie Lou Hamer,

Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments

Act of 2006, Pub. L. No. 109-246, 120 Stat. 577, which I first examined when assisting

attorneys for the United States in Northwest Austin Municipal Utility District Number

One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008), vacated sub. nom. Northwest Austin

Municipal Utility District Number One v. Holder, 129 S. Ct. 2504 (2009). In this

Declaration I include much of the evidence I provided to the trial court in Declarations on

November 15, 2010, and February 16, 2011, Shelby County, Alabama, v. Holder, 811 F.

Supp. 2d 424 (D.D.C. 2011, aff’d, 679 F.3d 848 (D.C, Cir. 2012).


6

Settlements in Section 2 Litigation, Covered vs. Non-Covered Jurisdictions

8. As initially reported in my Declarations in Shelby County v. Holder, I have

examined the evidence in two studies considered by Congress when it reauthorized

Section 5 of the Voting Rights Act in 2006: (1) Ellen Katz, et. al., Documenting

Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act

Since 1982 (2005), reprinted in To Examine Impact and Effectiveness of the Voting

Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the

Judiciary, 109th Cong. 16, 964-1124 (2005) [hereinafter Documenting Discrimination in

Voting]; and (2) Nat’l Comm’n on the Voting Rights Act, Protecting Minority Voters:

The Voting Rights Act at Work, 1982-2005 (2006), reprinted in Voting Rights Act:

Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the S.

Comm. on the Judiciary, 109th Cong. 104-289 (2006) [hereinafter Protecting Minority

Voters].1

1In its analysis the National Commission report utilized a version of the Michigan study directed by Professor Katz – known as the Voting Rights Initiative (VRI) – available on the VRI website as of Jan. 16, 2006. Thus the numbers in Protecting Minority Voters, supra, at 251 tbl. 5, drawn from the Michigan study, differ slightly from the numbers on the record before Congress. In my analysis I have relied on the numbers from the Michigan study on the record before Congress and the numbers calculated by the National Commission staff, id. Because I use the number of reported decisions favorable to minority voters in covered jurisdictions reported to the House (64) instead of the 66 such favorable outcomes identified in Protecting Minority Voters, at 251 tbl. 5, my total for reported decisions and court-ordered settlements is 651, rather than the 653 used by the National Commission. The slight differences in the numbers reported in different versions of the Michigan study do not affect the conclusions to be drawn from the data. A finalized set of numbers, which I believe are the most accurate, appeared in the version of the study published at 39 U. Mich. J.L. Reform 643 (2006).

The study by Professor Katz and law students working under her direction at

the University of Michigan assembled data regarding all reported decisions in Section 2


7

litigation from 1982 to 2005. Among other evidence provided in its report, the staff of

the National Commission gathered data regarding Section 2 litigation other than in

reported decisions. The Commission’s research utilized docket information contained on

Lexis and the federal courts’ Public Access to Court Electronic Records (“PACER”)

system; cases cited in the tables of Quiet Revolution in the South, supra; data supplied

from the files of voting rights attorneys; and a search of the Department of Justice’s

Submission Tracking and Processing System (“STAPS”) database, which records every

Section 5 submission involving a change in the method of election since 1980. See

Protecting Minority Voters, supra, at 240 n.280.

9. The Michigan study of reported decisions permits a detailed comparison of the

enforcement of Section 2 in jurisdictions covered by Section 5 and enforcement in the

rest of the country. Thus it provides useful evidence regarding the degree to which the

Section 5 coverage formula captures jurisdictions in which racial discrimination in voting

is most serious. On the other hand, as the Michigan study points out, many Section 2

cases have been settled by the parties to the advantage of minority voters in court-entered

settlement agreements that are not reported by the courts. Professor Katz and her

colleagues gathered lists of settled cases from various voting rights attorneys that

suggested that the total volume of Section 2 litigation was at least four times as great as

reflected in reported decisions. See Documenting Discrimination in Voting, supra, at

974.

10. The National Commission staff sought to collect data regarding the large

volume of “all Section 2 claims – reported and unreported – resolved in a manner


8

favorable to minority voters since 1982.” Protecting Minority Voters, supra, at 205.

Their search was, however, restricted to jurisdictions covered by Section 5 (excluding

one covered state, Alaska). See id. The Commission staff recognized that this list of

unreported settlements was incomplete but offered it as a “best effort” at a

comprehensive accounting. Id.

11. A more comprehensive picture of the total volume of successful enforcement

of Section 2 would include a similar list of settlements since 1982 for all jurisdictions not

covered by Section 5. In order to obtain a more comprehensive assessment, I undertook a

systematic search for Section 2 settlements in non-covered jurisdictions, utilizing the

following methodology: I began with a list of all lawsuits catalogued in PACER as

concerning “Civil Rights: Voting” (Code No. 441). I used LexisNexis CourtLink to

search by docket number for all cases in non-covered jurisdictions. Four staff members

working under my direction reviewed docket sheets to screen for possible Section 2

lawsuits and to print them for my review. After my initial review, two staff attorneys

examined additional information from PACER about particular lawsuits suspected of

being Section 2 settlements. In my final review, I did not include any case for which the

docket sheet or case documents electronically linked to the dockets failed to provide

some evidence that the case was resolved under Section 2 of the Voting Rights Act,

whether by reference to the federal code section or by reference to “voting rights issues”

or similar language. I also required some reference to settlement of the case, whether by

consent decree, consent judgment, consent order, or a simple reference to “settlement.”


9

12. In addition, I used certain publicly available documents to supplement

information from the electronic docket sheets. Laughlin McDonald & Daniel Levitas,

Vote: The Case for Extending and Amending the Voting Rights Act (2006), reprinted in

Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the

Constitution of the S. Comm. on the Judiciary, 109th Cong. 378-1269 (2006), provides

detailed information about the outcome of Section 2 cases brought by the American Civil

Liberties Union. The Voting Section of the Civil Rights Division of the Department of

Justice maintains a routinely updated list of voting rights cases brought by it from 1976 to

the present. Similar lists were made part of the record before Congress when the Voting

Rights Act was amended in 1970, 1975, and 1982.

13. My goal was to identify all Section 2 settlements in non-covered jurisdictions.

I recognize, however, that because of the limitations of PACER and CourtLink – which

did not begin receiving documents from district courts until the late 1980s – my list of

Section 2 settlements may be under-inclusive. The Michigan study documents that

reported decisions in Section 2 cases were most numerous in the first decade following

the creation of the Section 2 results test in 1982. Documenting Discrimination in Voting,

supra, at 975. The studies of Section 5 covered jurisdictions in Quiet Revolution in the

South indicate that Section 2 lawsuits in Southern states generated numerous orders and

settlements during the 1980s requiring the adoption of single-member districts or

cumulative or limited voting plans. Some docket sheets are available in the PACER

database beginning in 1985, but not consistently until the early 1990s. Until the last

decade, moreover, few docket sheets included links to complaints or consent decrees,


10

either in CourtLink or in PACER. The under-inclusiveness of CourtLink and PACER

also necessarily affects the study of Section 2 settlements in covered jurisdictions

conducted by the National Commission staff. Protecting Minority Voters, supra, at 204-

08, 239-40, and 251 tbl.5.

14. I can think of no plausible reason why district courts in covered jurisdictions,

mostly in the South, would have been more likely to send information about voting cases

to PACER than district courts in the rest of the country.

15. I found a total of 99 Section 2 settlements in non-covered jurisdictions.

Twenty-four of these cases were in Arkansas alone; thirteen were in California; eleven

were in the non-covered counties of Florida; thirteen in the non-covered counties of

North Carolina; and the rest scattered around the country. Evidence concerning 62 of the

99 settlements I found in non-covered jurisdictions (63%) was on the record considered

by Congress in adopting the 2006 Reauthorization Act.2

2 In my Declarations of November 15, 2010, and February 16, 2011, in Shelby County, Alabama, v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011), aff’d, 679 F.3d 848 (D.C. Cir. 2012), I reported that 61 of the 99 settlements in Section 2 cases in non-covered jurisdictions were identified in the record before Congress. In preparing the declaration in the present case, I found an additional settlement in non-covered jurisdictions that was identified on the record before Congress. This means that 63% of the settlements in non-covered jurisdictions (rather than the 62% I reported in prior declarations) were on the record before Congress. This correction also changes the percentage of Section 2 settlements in jurisdictions covered by Section 5 from 91% to 90% of all Section 2 settlements.

Voting Rights Act: Evidence of

Continued Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on

the Judiciary, 109th Cong. 321-22, 1484-85, 1773-74, 1779, 1782-84, 1794-95, 1875,

1889, 1986, 1999-2000, 4014-15, 4026-35, 4058-59, 4064, 4067-68, 4072-73, 4080-82,


11

4086, 4099, 4118-21, 4127, 4129, 4133-34, 4138, 4313-25, 4348, 4359-60, 4373, 4384,

4391-92, 4403-04, 4425, 4451-56, 4479, 4505-06, 4512-14, 4552, 4564-81, 4583, 4594,

4726, 4731-34, 4747, 5536-5544 (2006). See Attachment B to this declaration.

16. The 99 settlements in non-covered jurisdictions contrasts with the 587 cases

resolved favorably to minority voters in covered jurisdictions found in the National

Commission report.3

17. The number of Section 2 settlements in non-covered jurisdictions should be

compared with the number of consent decrees resulting from the court decision in Dillard

v. Crenshaw County, 640 F. Supp. 1347 (M.D. Ala. 1986). In that case the trial court

enjoined further use of at-large elections in nine Alabama counties. The court found,

relying in part on my expert testimony, that the Dillard plaintiffs had shown a substantial

Even if the under-inclusiveness of my research protocol led me to

find only half of the Section 2 settlements in non-covered jurisdictions – a hypothetical

194 settlements – there would still be 393 more settlements resolved favorably for

minority voters in areas covered by the preclearance requirements of the Voting Rights

Act than in the rest of the country. Based on my training and experience as a historian

and over 30 years of experience doing research for voting rights litigation, I am confident

that the number of court-ordered settlements in non-covered jurisdictions is unlikely to be

greater than twice the number I have identified here. Furthermore, jurisdictions covered

by Section 5 account for less than a quarter of the nation’s population, a number that

highlights the disparity in court-ordered settlements. Id. at 83.

3 Calculated from the numbers in Protecting Minority Voters, supra, at 251 tbl. 5. See Footnote 1, supra.


12

likelihood of prevailing on the merits by producing evidence that the Alabama legislature

“has engaged in a pattern and practice of using at-large systems as an instrument of race

discrimination.” Crenshaw Cnty., 640 F. Supp. at 1361.

18. The Dillard plaintiffs subsequently amended their complaint to add

municipalities and local school boards, so that the number of defendants eventually

totaled 183. Of these defendants, 176 entered into interim consent decrees with the

plaintiffs. The parties agreed to have the court deal with 165 of the defendants in

separate lawsuits, with separate files and civil action numbers, with the remaining 18

jurisdictions treated as defendants in Dillard v. Crenshaw County See Dillard v. Baldwin

Cnty., 686 F. Supp. 1459, 1461 (M.D. Ala. 1988). In short, the number of Section 2

settlements in the Dillard litigation alone was 1.8 times as great as the 99 settlements I

have identified in non-covered jurisdictions.

Analysis of the Results 19. Considering cases resolved not only by reported decisions but also by court-

ordered settlements gives a more comprehensive picture of the scope of litigation

enforcing Section 2 of the Voting Rights Act than simply looking at reported decisions in

Westlaw or Lexis. Once the number of court-ordered settlements is added to the reported

decisions, it becomes clear that the vast majority of racially discriminatory election

practices ended by enforcement of Section 2 during the past quarter century has taken

place in jurisdictions covered by Section 5 of the Act. The pattern is in fact quite stark.

20. The study of reported decisions by Ellen Katz and law students at the

University of Michigan included in the House record identified 64 Section 2 cases in


13

covered jurisdictions in which plaintiffs were successful. Documenting Discrimination in

Voting, supra, at 974-975.4 The National Commission report found 587 cases which it

characterized as resolved in a manner favorable to minority voters in covered

jurisdictions where there were no reported decisions. Protecting Minority Voters, supra,

tbl. 5.5

21. Looking at jurisdictions not covered by Section 5, the University of Michigan

study before the House found only 50 reported cases with outcomes that the authors

characterized as favorable for minority voters. Documenting Discrimination in Voting,

supra, at 974-975. Even though more than three-fourths of the nation’s population lives

in non-covered jurisdictions, id., only 50 (44%) of the 114 reported decisions before

Congress that were favorable for minority voters came from these non-covered

jurisdictions. The contrast becomes much greater if we examine the pattern of unreported

cases. I found only 99 Section 2 settlements in non-covered jurisdictions, as compared

These cases, some of which were statewide in impact, affected voting practices in

825 counties, parishes, or independent cities covered by Section 5. Id.

4 While the version of the Michigan study before the House identified 64 Section 2 cases in covered jurisdictions in which minority plaintiffs were successful, and 50 cases in non-covered jurisdictions in which plaintiffs prevailed, the finalized, published version of the study concludes that there were 68 cases with successful outcomes for minority plaintiffs in covered jurisdictions and 55 such cases in non-covered jurisdictions (44.7% of the total). See 39 U. Mich. J.L. Reform 643, 656 (2006). The list of Section 2 cases identified in the published Michigan study is available at http://sitemaker.umich.edu/votingrights/final_report. In both the initial and finalized versions of the Michigan study, more than half of all Section 2 cases in which minority plaintiffs prevailed were in covered jurisdictions. 5 The National Commission identified 66 reported cases that it characterized as being resolved favorably for plaintiffs, rather than the 64 in the Michigan data on the record before Congress. As noted in Footnote 1, supra, the Commission relied on an interim dataset from the Michigan study. See Protecting Minority Voters, supra, tbl. 5.


14

with the 587 in areas covered by Section 5 identified in the National Commission report.

Protecting Minority Voters, supra, tbl. 5. Adding the settlements in covered and non-

covered jurisdictions gives us 686 successful outcomes in cases without reported

decisions. Of these successful outcomes, 86% fall within jurisdictions covered by

Section 5, as demonstrated in Table 1:

Table 1. Comparison of Section 2 Outcomes in Covered and Non-Covered Jurisdictions

Covered Jurisdictions

Non-Covered Jurisdictions Total

Favorable Reported Decisions

64 (56%) 50 (44%) 114 (100%)

Court-Ordered Settlements 587 (86%) 99 (14%) 686 (100%)

Total 651 (81%) 149 (19%) 800 (100%)

22. Combining all successful outcomes in both reported and unreported cases

shows that 81 percent of all successful outcomes in Section 2 cases occurred in covered

jurisdictions and only 19% in the rest of the country. See Table 1 above. This seems a

more realistic estimate of the likelihood of Section 2 violations in covered jurisdictions –

as compared with those not covered by the preclearance requirement.

23. If we break down these findings by covered states, it becomes clear that the

number of Section 2 cases settled without trial by an election method favored by minority

plaintiffs was greatest in the states of the deep South – plus Texas. The data reported in

Table 2 below indicate that Texas had by far the greatest number of outcomes that

favored minority plaintiffs (206). The only other state that came close was Alabama,

with 192 Section 2 settlements.


15

Table 2: State-by-state Pattern of Section 2 Cases With Outcomes Favorable to Minority Plaintiffs in States Entirely Covered by Section 5

Covered States No. Cases Reported

No. Cases Reported & Unreported

Alabama 12 192 Alaska 0 0 Arizona 0 2 Georgia 3 69 Louisiana 10 17 Mississippi 18 67 South Carolina 3 33 Texas 7 206 Virginia 4 15 Total 57 601

24. When we look at states that include no covered jurisdictions, we find a

dramatically different pattern (see Table 3). Only Arkansas – surrounded on three sides

by Mississippi, Louisiana, and Texas – has a substantial number of Section 2 settlements

(28). Illinois has 11 court-ordered settlements. The remaining non-covered states are all

in the single digits.


16

Table 3. State-by-State Pattern of Section 2 Cases With Outcomes Favorable to Minority Plaintiffs in States Not Covered by Section 5

Non-Covered States No. Cases Reported

No. Cases Reported & Unreported

Arkansas 4 28 Colorado 2 3 Connecticut 1 2 Delaware 1 1 Hawaii 1 1 Idaho 0 0 Indiana 1 4 Iowa 0 0 Illinois 9 11 Kansas 0 0 Kentucky 0 0 Maine 0 0 Maryland 2 5 Massachusetts 1 3 Minnesota 0 0 Missouri 1 2 Montana 2 5 Nebraska 1 1 Nevada 0 0 New Jersey 1 2 New Mexico 0 7 North Dakota 0 1 Ohio 2 2 Oklahoma 0 0 Oregon 0 0 Pennsylvania 3 4 Rhode Island 1 2 Tennessee 4 6 Utah 0 1 Vermont 0 0 Washington 0 0 West Virginia 0 0 Wisconsin 1 1 Wyoming 0 0 Total 38 92


17

25. The contrast appears even starker if restricted to the record before Congress

when it adopted the 2006 Reauthorization Act. In the record before Congress there were,

as we have seen, only 62 Section 2 cases settled favorably for minority voters in non-

covered jurisdictions. See Paragraph 21, supra. In contrast, there were 587 Section 2

lawsuits resulting in favorable outcomes for minority voters in jurisdictions covered by

Section 5. Thus the record before Congress shows that 90% of all Section 2 cases settled

favorably for minority voters were in covered jurisdictions. The largest number of

Section 2 cases settled in a way favorable to minority voters – all of which were on the

record before Congress – was in Texas.

26. Whether we restrict our view to the record before Congress or broaden the

search to seek all court-ordered settlements in Section 2 cases, it is clear that the

jurisdictions covered by Section 5 witnessed by far the most Section 2 cases resulting in

voting changes favorable to minority plaintiffs (or the United States). The contrast is far

greater than revealed by the reported cases examined by the Michigan study, although

even the reported cases displayed a greater degree of minority success in covered

jurisdictions. By examining the outcomes for both reported and unreported cases, my

analysis provides a more comprehensive view of the relationship between Section 2

litigation and the coverage formula that identifies jurisdictions subject to preclearance.


Attachment A


1

CURRICULUM VITAE: PEYTON McCRARY Historian, U.S. Department of Justice, 1990- (202) 307-6263 (O) Civil Rights Division, Voting Section 1800 G Street, N.W, Room 7267 Washington, D.C. 20006 [email protected]

Principal Functions: Research in connection with voting rights litigation; identifying consultants and expert witnesses to be used in cases; working with attorneys and experts to prepare for direct testimony and cross-examination; supervising the preparation of contracts and processing the reimbursement of consultants and expert witnesses; drafting presentation of factual evidence in memoranda, briefs, and proposed findings of fact; legislative history research.

PERSONAL: Born, Danville, Virginia, 1943. EDUCATION: University of Virginia: B.A. (Honors), 1965 M.A., History, 1966 Princeton University: Ph.D., History, 1972 FIELDS: Minority Voting Rights; Law and the Political Process; U.S. History; History of the South;

Southern Politics; Civil War and Reconstruction; American Political Parties and Voting Behavior; Theory and Methods of Historical Analysis

CAREER RECOGNITION: Maceo Hubbard Award, U.S. Department of Justice, Civil Rights Division, 2011 ACADEMIC APPOINTMENTS: Adjunct Professor, George Washington University Law School, Washington, D.C., 2006 - Eugene Lang Professor [Visiting], Department of Political Science, Swarthmore College, Swarthmore, Pennsylvania, 1998-1999. Distinguished Scholar, Joint Center for Political and Economic Studies, Washington, D.C., 1987-1988. Associate Professor of History, 1978-82, Professor of History, 1982-90, University of South Alabama, Mobile, Alabama. Assistant Professor of History, 1976-1978, Vanderbilt University, Nashville, Tennessee Instructor, Assistant Professor of History, 1969-1976, University of Minnesota, Minneapolis, Minnesota

BOOK: Abraham Lincoln and Reconstruction: The Louisiana Experiment (Princeton, N.J., Princeton University Press, 1978), 423 pages. Winner, Kemper Williams Prize, Louisiana Historical Association, 1979.


2

BOOK CHAPTERS: “The Constitutional Foundations of the ‘Preclearance’ Process: How Section 5 of the Voting Rights Act Was Enforced, 1965-2005,” in Daniel McCool (ed.), The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Bloomington, Indiana University Press, 2012), 36-66. “Race and Municipal Reform in the Progressive Era: The Adoption of At-large Elections in Norfolk, Virginia, 1914-1918,” in Orville Vernon Burton, et.al. (eds.), The Struggle for Equality: Essays on Sectional Conflict, the Civil War, and the Long Reconstruction (Charlottesville, University Press of Virginia, 2011), 238-53. “The Law of Preclearance: Enforcing Section 5,” co-authored with Christopher Seaman and Richard Valelly, in David Epstein, et.al. (eds.), The Future of the Voting Rights Act (New York, Russell Sage Foundation, 2006), 20-37. "Alabama," co-authored with Jerome A. Gray, Edward Still, and Huey Perry, and "South Carolina," co-authored with Orville Vernon Burton, Terence R. Finnegan, and James W. Loewen, in Chandler Davidson and Bernard Grofman (eds.), Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990 (Princeton, N.J., Princeton University Press, 1994), 38-66, 397-409. Winner, Richard Fenno Prize, American Political Science Association. “History in the Courts: The Significance of City of Mobile v. Bolden," in Chandler Davidson (ed.), Minority Vote Dilution (Washington, D.C., Howard University Press, 1984), 47-65. LAW REVIEW ARTICLES: “How the Voting Rights Act Works: Implementation of a Civil Rights Policy, 1965-2005,” South Carolina Law Review, 57 (Summer 2006), 785-825. “The End of Preclearance as We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act,” co-authored with Christopher Seaman and Richard Valelly, Michigan Journal of Race & Law, 11 (Spring 2006), 275-323. [An unpublished version was printed in Voting Rights Act: Section 5 Preclearance and Standards: Hearings Before the Subcomm. On the Constitution, H. Comm. On the Judiciary, 109th Cong., 96-181 (2005)(Serial No. 109-69).] "Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern Politics, 1960-1990," University of Pennsylvania Journal of Constitutional Law, 5 (May 2003), 665-708. "Yes, But What Have They Done to Black People Lately? The Role of Historical Evidence in the Virginia School Board Case," Chicago-Kent Law Review, 70 (No. 3, 1994), 1275-1305. "Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern Voting Rights Cases," co-authored with J. Gerald Hebert, Southern University Law Review, 16 (Spring 1989), 101-28. "Discriminatory Intent: The Continuing Relevance of 'Purpose' Evidence in Vote-Dilution Lawsuits," Howard Law Journal, 28 (No. 2, 1985), 463-93. JOURNAL ARTICLES: “The Struggle for Minority Representation in Florida, 1960-1990,” Florida Historical Quarterly, 86 (Summer 2007), 93-111.


3

"Race and Reapportionment, 1962: The Case of Georgia Senate Redistricting," co-authored with Steven F. Lawson, Journal of Policy History, 12 (No.3, 2000), 293-320. "The Dynamics of Minority Vote Dilution: The Case of Augusta, Georgia, 1946-1986," Journal of Urban History, 25 (Jan. 1999), 199-225. "Racially Polarized Voting in the South: Quantitative Evidence from the Courtroom," Social Science History, 14 (Winter 1990), 507-31. "The Party of Revolution: Republican Ideas About Politics and Social Change, 1862-1867," Civil War History, 30 (December 1984), 330-50. "Class and Party in the Secession Crisis: Voting Behavior in the Deep South, 1856-1861," co-authored with Clark Miller and Dale Baum, Journal of Interdisciplinary History, VIII (Winter 1978), 429-57. REVIEW ESSAYS: "Race and Misrepresentation: Review of Maurice T. Cunningham, Maximization, Whatever the Cost: Race, Redistricting, and the Department of Justice," H-Net, Feb. 2002. www.h-net.msu.edu/reviews/showrev.cgi?path=214111015008351. "Review of David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interest in Congress," H-Net, May 1998. www.h-net.msu.edu/reviews/showrev.cgi?path=23313895266679. "Without Fear and Without Research: Abigail Thernstrom on the Voting Rights Act," co-authored with Pamela S. Karlan, Journal of Law and Politics, IV (Spring 1988), 751-77. "The Political Dynamics of Black Reconstruction," Reviews in American History, 12 (March 1984), 51-57. ENCYCLOPEDIA ARTICLE: "The Reconstruction Myth," in Charles Reagan Wilson and William Ferris (eds.), Encyclopedia of Southern Culture (Chapel Hill, University of North Carolina Press, 1989), 1120-21 [reprinted in Jonathan Birnbaum and Clarence Taylor (eds.), Civil Rights Since 1787: A Reader on the Black Struggle (New York, New York University Press, 2000), 150-53.] BOOK REVIEWS: American Historical Review, Journal of Interdisciplinary History, Journal of Southern History, Social Science History, American Review of Politics. COURTROOM TESTIMONY AS AN EXPERT WITNESS: (United States as Amicus Curiae), SCLC v. Evans, M.D.Ala. (Montgomery), December 1991. [Challenge to the method of electing certain circuit judges in Alabama] (Plaintiffs), Vereen v. Ben Hill County, M.D.Ga. (Macon), December 1989. [Challenge to the state law requiring appointment of county school boards by the local grand jury, as applied in more than a dozen counties] (Plaintiffs), Hall v. Holder, M.D.Ga. (Macon), December 1989. [Challenge to the sole commissioner form of government in Bleckley County, Georgia. (Plaintiffs), Irby v. Fitzhugh, E.D.Va. (Richmond), June 1988. [Challenge to the appointment of all school boards in the Commonwealth of Virginia]


4

(Plaintiffs), Dillard v. Crenshaw County, et.al., M.D.Ala. (Montgomery), Preliminary Injunction Hearing, March 1986. [Challenge to the at-large election of public officials in more than 180 Alabama counties, municipalities, and school boards] (Plaintiffs), Whitfield v. Clinton, E.D.Ark. (Helena), March 1988. [Challenge to the use of the statewide majority vote requirement in Phillips County, Arkansas] (Plaintiffs), Dent v. Culpepper, M.D.Ga. (Macon), Preliminary Injunction Hearing, November 1987. [Challenge to the at-large election of the City Commission in Cordele, Georgia] (Plaintiffs), Jackson v. Edgefield County, School District, D.S.C. (Columbia), April 1986. [Challenge to the at-large election of the Edgefield County School Board] (Plaintiffs), Harris v. Graddick, M.D.Ala. (Montgomery), February 1985. [Challenge to the procedures by which election officials are selected and elections conducted in Alabama] (Plaintiffs), Woods v. Florence, N.D.Ala. (Birmingham), August 1984. [Challenge to the method of appointing the Jefferson County Personnel Board] (Plaintiffs), Collins v. City of Norfolk, E.D.Va. (Norfolk), May 1984. [Challenge to the at-large election of the Norfolk City Council] (United States), County Council of Sumter County, S.C. v. U.S., D.D.C., February 1983. [Defense of Section 5 Objection to the at-large election of the Sumter County Council] (United States), U.S. v. Dallas County Commission, S.D.Ala. (Selma), October 1981. [Challenge to the at-large election of the Dallas County Commission] (Plaintiffs), Bolden v. City of Mobile, S.D.Ala. (Mobile), May 1981. [Challenge to the at-large election of the Mobile City Commission] (Plaintiffs), Brown v. Board of School Commissioners of Mobile County, S.D.Ala. (Mobile), April 1981. [Challenge to the at-large election of the Mobile County School Board] SWORN WRITTEN TESTIMONY AS AN EXPERT WITNESS: (United States) June 25, 2012, and July 20, 2012, State of Florida v. United States, C.A. No. 1:11-cv-01428, D.D.C. [Defense of the constitutionality of Section 5 of the Voting Rights Act] (United States) August 1, 2011, Laroque v. Holder, C.A. No. 1:10-0561, D.D.C. [Defense of the constitutionality of Section 5 of the Voting Rights Act] (United States) November 15, 2010, and February 16, 2011, Shelby County, Alabama, v. Holder, C.A. No. 1:10-cv-00651, D.D.C. [Defense of the constitutionality of Section 5 of the Voting Rights Act] (United States as Defendant-Intervenor) July 31, 1996, Cook v. Marshall County, Mississippi, and United States, C.A. No. 3:95 CV 155-D-A, N.D. Miss. [Defense of Marshall County's redistricting plan] (United States as Defendant-Intervenor) July 19, 1994, Hays v. State of Louisiana, C.A. No. 92-1522S, W.D. La. (Shreveport). [Defense of Louisiana's congressional redistricting plan] (United States) March 25, 1991, State of Georgia v. Thornburg, C.A. No. 90-2065, D.D.C. [Defense of Section 5 objection to the method of electing certain superior court judges in Georgia]


5

(Plaintiffs) January 20, 1988, Irby v. Fitzhugh, C.A. No. 87-0633-R, E.D.Va. (Richmond). [Challenge to the appointment of all school boards in the Commonwealth of Virginia] (United States) June 25, 1984, U.S. v. Halifax County, N.C., C.A. No. 83-88-CIV-8, E.D.N.C. (Wilson). [Challenge to the at-large election of the Halifax County Commission] (Plaintiffs) April 22, 1983, Wilson v. Powell, C.A. No. 383-14, S.D.Ga. (Dublin). [Challenge to the appointment of the Johnson County School Board by the county grand jury] (United States) September 28, 1982, County Council of Sumter County, S.C. v. U.S., C.A. No. 82-0912, D.D.C. [Defense of Section 5 Objection to the at-large election of the Sumter County Council] CONGRESSIONAL TESTIMONY: "Testimony Before the Subcommittee of National Parks and Public Lands, Committee on the Interior, U.S. House of Representatives, June 14, 1988. "Written Testimony of Dr. Peyton McCrary," in Extension of the Voting Rights Act: Hearings Before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, U.S. House of Representatives, 97th Cong., 1st Sess., Serial No. 24 (3 vols., Washington, D.C., G.P.O., 1982), III, 2749-76. UNPUBLISHED CONFERENCE PAPERS: “From Gomillion v. Lightfoot to City of Pleasant Grove v. United States: Annexations, De-annexations, and the Voting Rights Act.” Constitution Day Conference, San Francisco State University, September 2010. “Two Kinds of Vote Dilution: From Baker v. Carr to White v. Regester.” Organization of American Historians, April 2010. "How the Voting Rights Act Works: Implementation of a Civil Rights Policy, 1965-2005," University of South Carolina School of Law, October 2005; [revised version, Southern Historical Association, November 2005]. "Bringing Equality to Power: Federal Courts and the Transformation of Southern Electoral Politics, 1960-2000." Organization of American Historians, April 2002. "Why the Voting Rights Act Worked: A Judicial Model of Policy Implementation." Social Science History Association, October 1997; [revised version, Association of Public Policy Analysis and Management, November 1997]. "Yes, But What Have They Done to Black People Lately? The Role of Historical Evidence in the Virginia School Board Case." Southern Historical Association, November 1992. "The Impact of the Voting Rights Act in Alabama," co-authored with Jerome Gray, Edward Still, and Huey Perry. American Political Science Association, 1989 [revised version presented at a Conference on the Impact of the Voting Rights Act, Rice University, Houston, Texas, May 1990]. "Taking History to Court: The Issue of Discriminatory Intent in Southern Voting Rights Cases." Joint Center for Political and Economic Studies, Washington, D.C., June 13, 1988.


6

"Keeping the Courts Honest: Expert Witnesses in Voting Rights and School Desegregation Cases," co-authored with J. Gerald Hebert. Southern Historical Association, November 1986. "Discriminatory Intent: The Continuing Relevance of 'Purpose' Evidence in Vote-Dilution Lawsuits." Conference on Voting Rights Law, Howard University School of Law, Washington, D.C., January 1985. "The Subtle Gerrymander: Discriminatory Purposes of At-large Elections in the South, 1865-1982." Organization of American Historians, April 1983. "The Party of Revolution: Republican Ideas About Politics and Social Change, 1861-1868." Southern Historical Association, November 1980. "After the Revolution: American Reconstruction in Comparative Perspective." American Historical Association, December 1979. "The Civil War Party System, 1854-1876: Toward a New Behavioral Synthesis?" Southern Historical Association, November 1976. CHAIRPERSON, PANELIST, OR COMMENTATOR: Alabama Association of Historians, 1983. Alabama Department of Archives and History, 1988. American Political Science Association, 1987, 2003. Brookings Institution, 1990. National Association of Secretaries of State, 1983. Organization of American Historians, 1979, 1995. Social Science History Association, 1981, 1987, 1996, 1997, 1999. Southern Historical Association, 1973, 1985. University of Alabama, 1983. University of Utah, 2007. ACADEMIC REFEREE: Book-length manuscripts: Princeton University Press, University of North Carolina Press, University of Tennessee Press, University of Alabama Press, Louisiana State University Press, University of Georgia Press. Article-length manuscripts: Journal of American History, American Historical Review, Sociological Spectrum, Gulf Coast Historical Review, Social Science History. CONSULTANT: Test Design: College Board Achievement Test, American History; Educational Testing Service, Princeton, N.J., 1979-1983 Archival: Re-organization of Section 5 Objection Files, Civil Rights Division/Voting Section, U.S. Department of Justice, Washington, D.C., January-July, 1989. Litigation Research: Civil Rights Division/Voting Section, U.S. Department of Justice, Washington, D.C., August 1989 to August 1990.


7

FELLOWSHIPS AND GRANTS: John D. and Catherine T. MacArthur Foundation, 1987-1988: Distinguished Scholar, Joint Center for Political and Economic Studies, Washington, D.C. American Philosophical Society, 1983: Research Travel Grant. Rockefeller Foundation, 1982-1983: Research Fellowship. Carnegie Corporation of New York, 1982-1983: Research Fellowship. National Endowment for the Humanities, 1980: Summer Research Stipend. University of South Alabama, 1978-1987: Faculty Research Grants; Research Council Grant. Vanderbilt University, 1976-1978: Manuscript Preparation Grant. University of Minnesota, 1969-1976: Faculty Research Grants. Princeton University, 1966-69: University Fellow; Herbert Osgood Fellow; NDEA Fellow. University of Virginia, 1961-1966: Echols Scholar; Du Pont Scholar; Ford Foundation Fellow.


Attachment B




) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )


THE ATTORNEY GENERAL’S STATEMENT OF GENUINE ISSUES


Pursuant to Local Civil Rule 7(h)(1), Attorney General Eric J. Holder, Jr., submits

the following statement of genuine issues in response to the statement of material facts

filed by the State of Texas in support of the State’s motion for summary judgment.

1. The scope of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting

Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246,

120 Stat. 577 (2006), is an issue of law that is not properly included in a statement

of undisputed material facts. To the extent that the Court deems this issue to be

factual in nature, the Attorney General disputes that the 2006 Act reauthorized the

Voting Rights Act in its entirety. Most provisions of the Voting Rights Act do not

expire. See, e.g., 42 U.S.C. 1973.

2. The scope of facts material to Texas’s motion for summary judgment and the

admissibility of the evidence supporting those facts are issues of law that are not

properly included in a statement of undisputed material facts. To the extent that

the Court deems these issues to be factual in nature, the Attorney General disputes

that the full scope of facts material to the resolution of the State’s motion are

contained within the text of the Voting Rights Act of 1965 (as amended) and the

congressional record. The State relies on numerous additional factual claims,

including allegations concerning the administrative preclearance process, expert

testimony in this case, and the frequency of intervention by civil rights groups in

Section 5 declaratory judgment actions. Pl. Mem. 26-37. In addition, numerous

facts relevant to the resolution of the instant motion are not included in the State’s


statement of material facts. See A.G. Statement of Material Facts.

Respectfully submitted, RONALD C. MACHEN, JR. THOMAS E. PEREZ United States Attorney Assistant Attorney General District of Columbia T. CHRISTIAN HERREN, JR.

/s/ Spencer R. Fisher

JESSICA DUNSAY SILVER MEREDITH BELL-PLATTS



United States Department of Justice 950 Pennsylvania Ave. NW Dated: October 22, 2012 Washington, D.C. 20530


for the district of columbia state of texas, eric h. … · case no. 1:12-cv-00128 (rmc-dst-rlw)...

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